12 History and the law

After the Wright Brothers took off from Kitty Hawk in 1903, there was a time when there were no aviation regulations. There was no Federal Aviation Administration, no government authority telling pilots what they could and could not do. And indeed, for nearly 30 years, the federal government didn’t want the job. They insisted that regulation of the skies was a state issue. And so, every state had its own rules. Think of it like this: Imagine if every state had its own stop lights, its own speed limits and its own rules of the road. It would be a nightmare to drive anywhere, yes? That’s how it was for pilots until the Air Commerce Act of 1929, which established federal control over the skies under the Interstate Commerce Clause of the Constitution. The skies have no borders, cover the whole country and planes fly from one state to the next, therefore it’s all interstate commerce and under federal jurisdiction. So the logic goes. Aviation regulation remained part of the Commerce Department until 1956, when the Federal Aviation Agency was created in the wake of some high profile midair collisions. The agency’s charge since the beginning is to ensure safety of the skies, or what it now calls the National Airspace System (NAS).

It’s worth noting here that the reason the Air Commerce Act came about is because the aviation industry asked for it – indeed pleaded for it. The nation had become a patchwork of rules that make it difficult to operate an aircraft. State legislatures had very different ideas on what they should do about aviation, and massive efforts were expended to try to unify state laws with regards to the skies, and all for naught. Since World War II, states have largely kept out of the business of flight, but have returned with a vengeance with drones. The pattern has repeated. The FAA did not have specific rules for UAS, so the states are stepping in, and it has already created a patchwork of rules that makes it difficult to operate a UAS state to state.

12.1 Who owns the skies?

One area states have been active around regulating flight is in property ownership. Who owns the skies? The answer is not as simple as you would think.

Since the time of the Romans, property law and the skies could be summed up with the Latin “Cuius est solum…” which was the shortened version of “Cuius est solum, eius est usque ad coelum et ad inferos”: Whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell. If you own property, you own it all the way past the moon and beyond, and all the way down to the core of the earth, under this legal maxim. And that’s how it was until 1783, when the the first man on a hot air balloon flew untethered over property in France, and lawyers around Europe immediately saw the problem. If you own the skies to the heavens, isn’t someone flying over your property trespassing? This debate raged for more than 150 years, with lawyers, legislators and people slowly and generally agreeing that the skies belonged to everyone, not just the property owner underneath them. But the idea still persists – people still believe they own all of the skies above their property. But that hasn’t been true since 1946.

In World War II, the Army Air Corps went around the country buying up airstrips and turning them into training bases for bomber pilots for the war. Once such airstrip was in North Carolina next to the Causby family farm. Day and night, bombers began landing on an airstrip that came right up to the edge of their farm’s property. Planes as low as 83 feet landed over their house, waking them up at all hours and driving their chickens mad. From the filing, “low-flying military planes caused the plaintiffs’ chickens to ‘jump up against the side of the chicken house and the walls and burst themselves open and die’.” If they didn’t die, the hens stopped laying eggs. The farm went out of business and the family had to move to escape all the noise.

The Causbys sued, and in 1946, the U.S. Supreme Court said Cuius est solum has no place in the modern world. But the court wrote that what happened at the Causby’s farm amounted to the government taking their property. The noise constituted a kind of trespass that made it impossible for them to enjoy their property.

But Chief Justice William O. Douglas didn’t stop there. He wrote in the majority opinion that “if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run.” In other words, the landowner “owns at least as much of the space above the ground as he can occupy or use in connection with the land.”

Cuius est solum is dead, but the law says property owners still control some of their own airspace. But how much, and where, has not been determined for drones. For manned aircraft, it’s 500 feet – the minimum safe distance for a manned aircraft to fly in uncongested space. Drones are a different technology.

Or are they?

12.2 Raphael Pirker and “aircraft”

In 2011, Raphael “Trappy” Pirker was fined for filming a commercial for the University of Virginia with a drone. A video they posted drew a $10,000 fine for reckless operation of a UAS from the FAA. Pirker, who was part of a group of UAS pilots called Team Blacksheep who go around the world shooting videos of places, many of them unauthorized and very close to monuments or sensitive buildings.

Pirker sued the FAA, challenging the notion that drones are aircraft and subject to the same regulations. Pirker, through his attorney Brendan Schulman, asserted that by the FAA’s own actions on model aircraft, there were no regulations and the only rules were voluntary guidelines established in the 1980s. If there were no rules governing drones, then the FAA had no standing to fine Pirker.

At the trial court level – an administrative law court part of the National Transportation Safety Board – Pirker won. A judge agreed that drones/UAVs were not “aircraft” and subject to FAA regulations. For 22 hours, it appeared there were no rules for drones in the United States. And 22 hours after the ruling, the FAA appealed to the full NTSB, returning things to the status quo. Months later, the NTSB reversed the decision, saying that drones were indeed “aircraft” under the definition that Congress had set out: “anything designed to navigate the skies.”

Pirker settled for a fraction of the original fine and dropped the case.

That “aircraft” ruling set in motion a host of other regulatory changes at the FAA.

12.3 The FAA Modernization and Reform Act of 2012

All this drone stuff you’ve been hearing about in the news? It really got started with the FAA Modernization and Reform Act (FMRA, spoken as “fim-rah”) of 2012. The big headline out of that law, at least originally, was that it settled some labor issues and disputes over subsidized routes into rural airports. But the big deal was the drones. The law ordered the FAA to safely integrate drones into the National Airspace System by September of 2015. It set out multiple interim deadlines for the FAA to meet on this route, but by September of 2015, routine drone flights were to be legal, safe and permitted.

The FAA missed every deadline. Including integration.

12.4 Section 333

The real lasting news of the FMRA was Section 333. At only five paragraphs long in a 300-page bill, it wasn’t much to see. But it had the most lasting impact. Section 333 says, in whole:

SEC. 333. SPECIAL RULES FOR CERTAIN UNMANNED AIRCRAFT SYSTEMS. (a) IN GENERAL. — Notwithstanding any other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.

ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS. — In making the determination under subsection (a), the Secretary shall determine, at a minimum—

which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and
whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified under paragraph (1).

REQUIREMENTS FOR SAFE OPERATION. — If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.

The FAA missed this deadline too, but they did ultimately implement it. In it, they determined:

You do NOT need an airworthiness certificate for an unmanned system. The airworthiness certificate is an intense process that can take six years for new manned aircraft designs prior to manufacture.
You DO need a certificate of authorization (COA) for operating in controlled airspace.
The Pilot in Command under Section 333 must be a licensed pilot.

The FAA began granting exception in September 2014. The first six went to Hollywood filming companies who had already been using them for filmmaking.

12.5 The Drone Journalism Lab and Drones in Education

The timeline:

November 2011: The Drone Journalism Lab at the University of Nebraska-Lincoln is established.

October 2012: The Drone Journalism Lab, working with the NIMBUS Lab in Computer Science and Engineering at UNL, use a drone to report a story on Nebraska’s drought. We flew in Class G airspace, over public lands, far from anyone outside of the filming of the story. This was the story we produced <https://www.youtube.com/watch?v=HV0iKlF9AdA>_.

July 10, 2013: We received a cease and desist order from the FAA. In the letter, the FAA said we were “operating a UAS without proper authorization.” We were unauthorized because we were a state university and had not followed the rules for government aircraft. In a follow-up phone call, we were told that as a state university, we would be under the Public Aircraft Statutes, which, prior to Section 333, was the only way to get permission from the FAA to legally use UAS for anything other than hobby flights. We began working on paperwork to get that authorization.

July 3, 2014: The FAA’s lawyers, when asked by the FAA’s UAS division if universities could train drone pilots under Public Aircraft Statutes, determined that education wasn’t a government function, and that anything other than aeronautics research being done at universities counted as public aircraft. Any use by a university – for class, for research, for anything – that wasn’t aeronautics research could not be allowed under the Public Aircraft Statutes. The FAA’s UAS division begins encouraging universities to try a 333 Exemption instead of a COA.

Feb. 18, 2015: The FAA rejects the Drone Journalism Lab’s COA application, saying “Your applications Program Executive Summary is not a government function under Title 49 United States Code (49 USC) section 40125(a)(2), therefore the proposed operation would not be a public aircraft operation for which the authorization is intended.”

On advice from the FAA’s UAS division chief, the Drone Journalism Lab began seeking a 333 Exemption. Lab founder Matt Waite began getting his pilot’s license to comply in May 2015. He completed it on Sept. 28, 2015, the same day he applied for a Section 333 Exemption for the lab.

The FAA never issued the Section 333 Exemption.

Part 107 was announced in June 2016 and the FAA ceased issuing 333 exemptions in advance of the rules becoming final.

Which leads us to today.

Under Part 107, you can operate a drone commercially, and for education, if you can pass a 60-question multiple choice test. You need a score of 70 percent to pass.