As The Drone Flies: How To Think About Property Ownership, Federal Preemption, And Airspace Control In The Era Of Remotely Piloted Aircraft

• Jurisdiction: United States,Federal
• Law Firm: Wiley Rein
• Subject Matter: Transport, Aviation
• Author: Sara M. Baxenberg and Joshua S. Turner
• Published date: 21 February 2023

Introduction

The emergence of affordable, scalable small uncrewed aircraft systems ("UAS" or "drones") has the potential to transform numerous facets of everyday life. Because they are small, nimble, relatively easy to operate, and remotely piloted, drones offer significant opportunities that crewed aviation largely has not, including the ability to access hard-to-reach places and to sustain safe flight at very low altitudes'all at much lower price points and with much lower risk than traditional crewed aircraft. Practically, the benefits are unending: quick access to lifesaving medications in rural areas; better realtime image collection for purposes such as newsgathering, search and rescue, and monitoring of natural disasters; improved infrastructure inspection capabilities that obviate the need to put people in dangerous places such as on top of cell towers or compromised structures; and sophisticated home delivery systems that decrease wait times and reduce the number of heavy vehicles on the road, just to name a few. Drones have the potential to do a significant amount of good for us, our way of life, and our future.

Congress understands the numerous societal benefits that a robust drone ecosystem will bring, and has repeatedly passed legislation to foster the burgeoning industry. These legislative enactments include a 2012 mandate to the Federal Aviation Administration ("FAA") to integrate drones into the national airspace system, as well as numerous provisions from 2012 onward giving the FAA the requisite authority and direction to enable the remote identification ("remote ID") of drones in flight, to develop an uncrewed traffic management system ("UTM") akin to air traffic control for piloted aircraft, and to establish a process for limiting drone flights over critical infrastructure facilities, among others.

The FAA, for its part, has made significant progress integrating UAS into the existing, complex regulatory framework that has given the U.S. the safest, most secure airspace in the world. The agency has adopted enabling regulations that allow for routine (but limited) UAS flights by commercial entities, expanded those regulations to permit routine operations at night and over people, and established remote ID requirements which, once fully implemented, will ensure that law enforcement and public safety around the country can identify UAS in flight and verify that they are safe actors authorized to be in the airspace. Although the pace has been...