Tech Roundup Episode 12 – Airspace and Drone Regulations

In this episode, Brent Skorup discusses the current state of drone technology, the history of airspace and drone regulations in the United States, and his new paper, “Drone Technology, Airspace Design, and Aerial Law in States and Cities,” published by the Mercatus Center.

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Transcript

[Music and Narration]

 

Operator:   Welcome to The Regulatory Transparency Project’s Fourth Branch Podcast Series. All expressions of opinion are those of the speaker.

 

Jack Derwin:   Welcome to The Regulatory Transparency Project’s Tech Roundup Podcast, which is part of RTP’s Fourth Branch Podcast Series. My name is Jack Derwin, and I’m Assistant Director of RTP. 

 

Today, I’m excited to be joined by Brent Skorup to discuss the regulation of airspace and drones in the United States. Brent is Senior Research Fellow at George Mason University’s Mercatus Center, where his work focuses on telecommunications, transportation technology, and wireless policy. 

 

Brent’s work has been cited by the FCC as well as multiples state supreme courts. And he’s a frequent contributor to a range of media outlets. Thank you, Brent, for taking the time to join me today.

 

Brent Skorup:   Jack, thanks for having me on. 

 

Jack Derwin:   Absolutely. So with that, we’ll turn right into it. So to open up our discussion today, can you give me a sense of the current state of commercial drone technology? For example, are deliveries currently happening somewhere in the United States? 

 

Brent Skorup:   Yeah. I think for people who have day jobs who don’t follow the drone industry closely, they might be surprised at how quickly the drone industry has advanced. There are deliveries going on in the United States on a pilot basis. And this has been talked about for years. Jeff Bezos famously predicted on national TV a few years ago that there’ll be drone delivery by Amazon, but it’s taking a little longer than he anticipated then. And we’ll talk about some of the regulatory reasons for that.

 

But, yeah, the drone industry has grown. One company that stands out is this company called Zipline. They’re an American company, and they’ve recently gotten permission to fly in the United States. They’ve been doing medical deliveries in Rwanda and Ghana for five years or so and just recently got permission to fly in the United States in North Carolina and Arkansas, I believe.

 

Their drones do medical deliveries. They have 100-mile — they’re fixed wing. They look like miniature airplanes, but they’re autonomous. They can do a roundtrip of 100 miles, and they drop payloads via parachute to medical centers and hospitals. And they’ve done over 80,000 commercial deliveries around the world, most of those in Rwanda and Ghana but also the United States. 

 

Zipline and Walmart have paired up. Walmart, UPS, Amazon, Google, they all have drone delivery programs, small ones, in the United States.

 

Jack Derwin:   And so turning to the regulatory aspects, can you give us a sense of — or just a general overview, of what regulations drone operators face right now in the United States?  

 

Brent Skorup:   Yeah. Until 2016, the FAA was working with its traditional aviation laws. And it was actually a huge obstacle to try do a commercial drone service, say, if you’re doing utility inspections or farm ag spraying or anything like that or delivery. The FAA treated a drone as any other aircraft because that’s what — their laws didn’t allow too much wiggle room on that. 

 

But Congress modernized aviation laws, the FAA, in 2016, created what’s called Part 107. It’s a new regulatory category for commercial drones, and these are drones not for hobbyists, not for recreation, but those non-recreation, non-hobbyist drones like commercial services. 

 

And the FAA didn’t anticipate how much interest there would be in these drones. And the number of commercial drones out there keep exceeding FAA projections. Today, there are over a half million — as we speak now, there’s over a half million commercial drones in the United States and over 200,000 drone pilots, certified drone pilots. 

 

The general restrictions are mostly commonsense. Below 400-feet, you have to fly to avoid manned aircraft and controlled airspace. You got to be less than 55 pounds, only one drone per pilot at a time. And probably the most restrictive which is you can’t fly beyond the visual line of sight of the pilot. 

 

And this restriction really makes it hard to do a delivery service or even if you want to do, say, crop monitoring or crop inspections, utility line inspections, if you have to be within visual line of sight, that really hinders what you can do. But that’s the state of the regulations. And, of course, the FAA can waive all of these with good cause. but you can’t really have an industry depending on regulatory waiver. And it’s proven to be a big hindrance.

 

Now, the FAA knows that there is a ton of commercial interest in this and particularly in beyond visual line of sight, these long-distance services. And in 2017, the White House and the FAA teamed up, and they created the integration pilot program where they stood up — they took applications from state and local authorities and stood up ten—I believe it was ten. They lost one along the way—drone pilot programs across the country to try to do some of these more complex services. 

 

But that’s where things are now, and, actually, that just winded down. And a month or two ago, the FAA said that they’re moving onto the second version of those pilot programs. And that will be for the next administration to carry out. 

 

Jack Derwin:   That’s really interesting. So the FAA, of course, operates at the federal level. But the GAO, the Government Accountability Office, recently reported to Congress that the issue of drone federalism poses an obstacle to the progress of the industry. Can you unpack that a little bit and tell us about the current state of differences between states and between federal regulations and state regulations? 

 

Brent Skorup:   So this drone federalism issue, it’s been one that’s festered, frankly, for a long time. A congressional research service in 2013 wrote a report to Congress saying that determining what’s the state and local role with drones and what’s the federal role is a complex one because unlike traditional aviation where planes are flying at hundreds or tens of thousands of feet above the Earth, there’s just a — there’s not really an interest for state and local authorities, aside from sighting and zoning airports and that sort of thing. 

 

Drones are very different. Drones typically fly — the FAA requires them to fly below 400 feet. And at some level, there is an intersection with private property rights and property rights are typically determined at the state and local level. 

 

So you have this inherent tension where drones have to fly in this surface airspace, this low altitude airspace, but at some point, you’re entering the jurisdiction of state and local jurisdiction and private property. And this has been an issue that has not received any resolution from the FAA or from the states. And I think there’s been an avoidance of this, although there’s starting to be lawsuits about this. 

 

Actually, just last week, there was a court case on this decision, a really important one and one that I anticipated in a paper that I put out last week. So many states, or I think about a dozen states, have created drone no-fly zones above sensitive infrastructure, things like utility lines and schools and stadiums and so forth. 

 

Many in the drone industry, and I would say many at the FAA, believe there’s no role for states and cities to play here, that this is purely a federal issue just like traditional aviation is almost purely a federal issue and managing air traffic. So about a dozen states have created these no-fly zones, Texas was one of them. I think their first law was in 2013, and they’ve amended it over time.

 

Last year, some drone photographers sued the State of Texas and said that state no-fly zones are preempted by federal law. A federal judge last week dismissed with prejudice that claim that states are preempted in their no-fly zone regulations. So and this is a big development. 

 

I didn’t anticipate a court dismissing it at this stage, but it is an issue I anticipated in the paper that I think we’ll talk about that states and localities do have a major role to play when it comes to drone regulation and airspace management. And until this is resolved, it harms drone operators who don’t know who they need to talk to to get permission to access airspace. And this has been the primary obstacle for long-distance drone services. They can’t get access to airspace. They need permission from regulators to fly at low altitudes. 

 

And so until this is resolved, it’s a huge hindrance for the industry, and it’s not good for either regulators who have this uncertainty or the industry. And I hope it will be resolved soon. GAO in that report you mentioned, which came out in September, said that the U.S. DOT and U.S. DOJ has formed a task group that is formulating federal position on this. But that hasn’t come out yet. I and many who work in this area are looking forward to that report.

 

In the GAO report — and this has been kind of whispered before, but GAO said that it’s FAA’s position that navigable airspace, that federally regulated airspace, extends down to the grass tips so that their jurisdiction would extend into all our backyards and private woodlands and farm fields across the country. It’s a very expansive view of current law and at tension somewhat with constitutional law. So but yeah, hopefully, it gets resolved soon. 

 

Jack Derwin:   Right. I would guess that would be news to a lot of homeowners across the U.S. 

 

Brent Skorup:   Yeah, to put it lightly.

 

Jack Derwin:   And so you mentioned your paper there, which I would love to turn to now. It’s a fascinating paper in which you look at the history of air rights and property law and specifically airspace regulation, of course. And can you give us just a general overview of what you found with that paper? 

 

Brent Skorup:   Sure. Well, the paper which the Mercatus Center published last week or released last week —

 

Jack Derwin:   And we’ll link that in the episode notes, of course.  

 

Brent Skorup:   Yeah, terrific. Thank you. And it discusses the history of low altitude airspace regulation, which courts have treated for decades. They’ve made this distinction between surface airspace and high-altitude airspace. And high-altitude airspace is that traditional airspace where commercial airlines fly. There’s just a negligible role for private states and property owners. 

 

Surface airspace, however, has always been treated differently. And it’s been treated namely as property. And actually, many states have vested surface airspace with landowners. And courts have treated it that way as well, and so we trace — in the paper, I trace the history of this distinction between surface airspace and high-altitude airspace and cite court cases showing that private property owners have a property interest in surface airspace, including aviation cases. 

 

There was a famous one, the Causby case in 1946, where a North Carolina farmer sued the U.S. government for flying bomber jets at low altitudes right above his farm, sued under the Fifth Amendment as a takings of property. And Supreme Court blessed that, said that aviation aircraft can take property if they fly through it and destroy the value to the landowners. 

 

So this all is relevant as you can imagine for drones. And so talk about this history of surface airspace, this history of the propertization of surface airspace and also ways that regulators should treat this so that you can simultaneously protect private property but also allow a large and growing commercial drone service sector.

 

Jack Derwin:   Right. And so that history you provide in the paper, I think, is really, of course, valuable to the current discussion. And then in the paper, you also do turn to the current discussion. And can you talk a little bit about the policy proposals you suggest? 

 

Brent Skorup:   Yeah. So I have this descriptive history of surface airspace and takings law and property law. And I also have some policy proposals with this history and legal principles in mind. One is that the U.S. government should recognize state and landowner interest in surface airspace, do this formally. And I hope the FAA will do this soon.

 

The other is with this recognition of state and local and private property interests to surface airspace, that federal and state governments should lease rights away airspace to drone operators. So they should demarcate area corridors of public roads, which is rights of way airspace. It’s a public resource. 

 

Demarcate this and lease it out to drone operators so that drone operators can have access to this very valuable low altitude airspace and start doing things like delivery services and utility lines inspections. And a nice benefit for federal and state, they would get leasing revenues from this public asset that’s currently not monetized. 

 

And the final recommendation is one to courts which is if Congress does not formalize this federal-state break down in surface airspace, that courts should recognize aerial trespass for drone flights below 200 feet above the ground and above private households. And that’s just to give homeowners to recognize their property interest, their private property, and also give drone operators this certainty that if they stay in the rights of way and/or at very high altitudes, they’re not infringing on private property.

 

So those are the recommendations, and I encourage listeners to check out the paper. 

 

Jack Derwin:   Absolutely. And like I said, we’ll definitely link to that in the notes of the episode. And so to close us out here, you’re, of course, very plugged into both the technological side and the regulation side of drone technology. And so do you have any sort of sense of what we might see under the Biden administration and next Congress? And also, what technological advancement we might see in the next few years? 

 

Brent Skorup:   I suspect we will see this formulized sharing of jurisdiction with state and local authorities. The court case last week is one sign of that. The fact that the federal government will have to deal seriously with the claims of states and private property owners when it comes to surface airspace. 

 

So I think and hope that federal law makers will formulize that, drone federalism, if you will. Absent a complete revolution in takings jurisprudence and Fifth Amendment, I just don’t see a way around it. So I hope that’ll happen soon. 

 

On the commercial side, once that happens, drone operators, once they have access to surface airspace, they can turn on services very quickly. I mentioned Zipline has been doing — they’ve been flying autonomously in drone corridors for five years now, mostly in other countries. But states and cities own vast amounts of rights of way airspace. And once drone operators have access to that, they can very quickly start doing drone services. 

 

So I’m optimistic once we get regulatory clarity, and I’m very hopeful that in the next few years, we will see some of these small pilot projects turn into regional and city-wide delivery systems.

 

Jack Derwin:   Yeah. That’s certainly quite exciting to think about and hopefully look forward to. All right. Well, we really appreciate you taking the time to lend us your expertise today, Brent. I thought you provided a really good breakdown of what’s on the surface a really complex topic that people are definitely interested in but don’t necessarily always dive into. So we really appreciate it.

 

Brent Skorup:   Thanks for having me on.

 

Jack Derwin:   Of course. And thank you to our audience for tuning into this episode of RTP’s Explainer Podcast. Please check out our website at REGproject.org to learn more about this issue and a host of other regulatory topics.  

 

[Music]

 

Operator:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch Podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at regproject.org. That’s R-E-G-project.org. 

 

This has been a FedSoc audio production.

Brent Skorup

Senior Research Fellow

Mercatus Center, George Mason University


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