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When It Comes to Drones, Who Owns Our Backyard Airspace? (Contributed)

As unmanned aerial technology advances and regular flight paths sprout up, local authorities and residents will need to have more input over drone operations if the industry is to thrive.

by Brent Skorup and Connor Haaland / March 24, 2020
Shutterstock/Andy Dean Photography

As the effects of the novel coronavirus continue to ripple around the globe, institutions and individuals are implementing various forms of social distancing protocols and remote work arrangements. And as self- or government-imposed quarantines become necessary, technology is evolving alongside newfound needs. 

A remarkable event recently took place in China. Local authorities and drone companies accelerated their drone delivery pilot programs as the health crisis peaked. In the past month, according to preliminary reports, drone operators made thousands of drone flights in affected regions, totaling 11 tons of parcel and medical deliveries. The roundtrip flights not only helped prevent virus spread but also provided a glimpse into the global race to commercialize on-demand parcel and medical supply deliveries via drone.

As if on cue last month, the Federal Aviation Administration (FAA) announced plans to certify drone service, clearing a path for some package deliveries by companies like Amazon. The benefits for this type of service are increasingly obvious, yet current federal plans may create undue animosity between the drone industry, state governments and their residents.

Consider a case from the summer of 2015, in which a polarizing scenario involving guns, privacy and technology unfolded at William Meredith’s Kentucky residence. As he, his friends, and family were grilling in his backyard, Meredith’s young daughter alerted him to a small drone flying over the neighborhood, which wasn’t the first drone sighting near his house. Annoyed, he retrieved his shotgun from his home, and when the drone crossed his property line, he shot it out of the sky. 

The drone’s owner, a neighbor, called the police upon discovering his destroyed drone. Meredith was then arrested and charged under local law for firing a gun in a populated area. At the highly publicized trial in state court, the judge dismissed the charges with a brief statement that Meredith was justified in shooting because of the invasion of privacy.

The core dispute is one that many Americans have wondered as drones go mainstream: Where does my property line end and “drone airspace” begin? As drone technology advances and regular flight paths sprout up, local authorities and residents will need to have more input over drone operations if the industry is to thrive.

There’s great potential for drones to provide new services and skilled jobs. Investors have devoted a few billion dollars to commercial drone companies in the past decade. Most of that activity is based in the United States, yet tens of thousands of postal and medical deliveries via drone have been completed in countries as geographically and politically diverse as Switzerland, Rwanda, Iceland, and China.

Closer to home, utilities, cellular operators, and railroads use drones for inspections. The next drone opportunity is securing a sliver of the $30 billion home delivery market. Consumers want same-day grocery deliveries and Amazon Prime packages, and courier companies are looking to drones to make delivery faster, cheaper, and — by taking five-ton delivery vehicles off the roads — better for the environment. Ground traffic congestion would also benefit. Companies like Walmart, Amazon, Uber, and Walgreens are all investing in U.S. drone delivery services as the sector rapidly matures.

Some airspace regulation maximalists within the FAA and industry believe — as a top drone official at the FAA opined in 2014 — that drones expand the FAA’s regulatory reach all the way down to the tips of grass in backyards, private woodlands, and farm fields all across the country.

That view represents a massive expansion of federal authority at tension with Supreme Court rulings and common law principles of property ownership. To counteract simmering resistance from state lawmakers and city officials, federal lawmakers and a state law commission have proposed to formalize landowners’ air rights, generally up to 200 feet above the ground. Tech firms and drone companies oppose those efforts at their peril. Though few landowners are rash enough to shoot drones flying overhead, many Americans don’t want drone operations and policy to be determined by firms and regulators in Washington, D.C.

As with automobiles and telecommunications, federal and state roles for drones should be complementary. Federal agencies, for instance, certify the designs and safety features of automobiles and mobile networks, but states and cities determine local issues like vehicle noise restrictions and cell tower placement. When the technology is safe enough, residents and local officials will want to determine where drone routes are placed. 

Cities own or control the airspace above public roads, and these aerial corridors could serve as a natural route for drone highways. Leasing out these rights of way would give cities passive income for the use of the routes — and importantly, it would also avoid the thorny eminent domain questions by keeping most drones out of backyards.

Drone services have a bright future, enabling commerce and responding to crises. Countries around the globe are already embracing them to save lives, increase crop yields, and deliver goods. Drone airspace use is not like traditional aviation, and the current stalemate over its management benefits no one. 

The sooner states and cities recognize their proper role, the better.

Brent Skorup is a senior research fellow at the Mercatus Center at George Mason University and a member of the Texas Department of Transportation’s Connected and Autonomous Vehicle Task Force. Connor Haaland is a research assistant at the Mercatus Center, a Rhodes Scholar finalist and will be attending Harvard Law in the fall. They are co-authors of recently published Mercatus Center research, a 50-state report card on which states are prepared for the drone industry.

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