original composition – backplate courtesy Phil Desveaux CCL

Hi all –

I am honored to be named one of the UAV Coach Top 100 for the second year in a row. Awesome list! Thank you Alan, and thanks to each of you for your support.

I have devoted this issue to a heretofore little known, but now fast emerging threat to the commercial drone industry, the Uniform Law Commission (ULC) draft of the Tort Law Relating to Drones Act. This Act defines “aerial trespass” by low-altitude unmanned aircraft systems (UAS). This is something that the industry cannot afford to ignore.

But first our regularly scheduled programming.

THE FAA

According to an FAA press release, there are now 100,000 Part 107 pilots flying both commercially and recreationally (non 336). It took 23 months to hit the mark.

Elsewhere, the Senate FAA Reauthorization Bill, S. 1405, is still gasping for air. On Thursday, Morning Transportation reported that:

EVERYBODY’S TWO CENTS ON FAA: Senate leaders are circulating a list of 46 amendments likely being considered as part of a manager’s package on the FAA bill. It includes long-awaited federal counterdrone authorities for DOJ and DHS agents and a provision that would require the FAA to develop a plan to implement an air traffic control system for drones…

No word about Remote ID or Section 336.

I assume that the DOJ/DHS amendment is derived from S. 2836 – Preventing Emerging Threats Act of 2018.

The House version, H.R.6401,has been referred to the Subcommittee on Aviation for review. (It is now in four committees.) If they can get the mark-up done in September it could play into the FAA Reauthorization Conference should there be one in the 115th.

THE ULC TORT LAW RELATING TO DRONES ACT

Here is the aha.

When I ask people what they think is holding back the industry, most say legislation and regulation. While there is plenty of wishful thinking, no one has any idea how long it will take to move from waivers to rules.


In sharp contrast, the ULC Drones Act has the potential to disrupt current Part 107 operations within two years.


Let’s meet the new player.

The Uniform Law Commission was established in 1892. “[It] provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

There is only one fundamental requirement for the more than 300 uniform law commissioners: that they be members of the bar. While some commissioners serve as state legislators, most are practitioners, judges, and law professors. They serve for specific terms, and receive no salaries or fees for their work with the ULC.

The state uniform law commissioners come together as the Uniform Law Commission for one purpose—to study and review the law of the states to determine… Where uniformity between the states is desirable.

It must be emphasized that the ULC can only proposeno uniform law is effective until a state legislature adopts it. [emphasis mine]

This ULC Committee was specifically established to ”Draft a uniform act or model law addressing tort liability and defenses associated with the unique use of
aerial drones.”

Faced with an ever-growing patchwork quilt of state and local regulations, uniform regulation would be a very helpful thing. Unfortunately, the proposal on ‘aerial trespass’ that is in the current draft is not in the best interests of either commercial or recreational pilots. Nor, despite their intentions, is it practical
or enforceable.

If you are not a lawyer, and I am definitely not, you may wonder what tort law is. This definition is from LegalMatch.com:

Tort law is that body of law which covers violations where one person’s behavior causes injury, suffering, unfair loss, or harm to another person.

The ULC proposes to create a tort if a drone trespasses into private airspace, which for this purpose is defined as everything below 200′ AGL.


In other words, fly your drone over somebody’s property below 200′ AGL without their consent and they can sue you.


At this point, you should be thinking “HUH? I thought that the FAA controlled everything from the grass to the heavens.”

And you would be right – that is one side of the argument – kinda. In fact, in response to the ULC, the FAA just reasserted their jurisdiction in a press release saying that:

Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things. State and local governments are not permitted to regulate any type of aircraft operations, such as flight paths or altitudes, or the navigable airspace.

What the FAA concedes, because they have to, is that:

These powers are not the same as regulation of aircraft landing sites, which involves local control of land and zoning. Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation. 

A particularly memorable expression of this came from San Francisco Mayor Ed Lee who served on the DAC before his untimely death.

With drones, the entire city in effect becomes an airport, creating issues over zoning, privacy, law enforcement and even job displacement. “This transformation is big for cities,” Lee said. “They’re going to resist intrusions into their space as opposed to accepting the good [that drones do] and ferreting out in a collaborative way what may be challenging.

The discussion between Lee, FAA Administrator Michael Huerta and Helicopter Association International CEO Matthew Zuccaro, is reported in an excellent article by Bill Carey writing for AINonline, FAA Amenable to Discussing Jurisdictional Issues Over Drones.

PREEMPTION

Central to understanding (disagreeing with) what the ULC is proposing, is the concept of preemption.

In 2017, the City of Newton, MA adopted an Ordinance restricting drone flights within city limits. A Newton resident, Dr. Michael S. Singer challenged four elements of the Ordinance on the grounds that the City had preempted the FAA’s authority by:

(1) requiring registration of drones with the City Clerk’s office;

(2) prohibiting flights below 400 feet over private property without express permission of the property owner;

(3) prohibiting flights over public property without prior permission from the City of Newton; and

(4) prohibiting any operations beyond the visual line of sight of the pilot.

Reporting on the decision, Locke Lord LLP commented that:

…The Court found that each of the four challenged regulations conflicted with, and were thus preempted by, the FAA’s registration and operational rules for UAS.
[my emphasis]

Presaging what has become the mission for UAS IPP, the article concludes that:

…We anticipate this decision may place additional pressure on Congress to enact legislation expressly affording state and local governments a say in regulating
UAS operations.

Engadget headlined their story, Ruling Gives FAA More Power Over Drones Than Local Governments:

US District Judge William G. Young explained that “Newton’s choice to restrict any drone use below this altitude (400 feet) thus works to eliminate any drone use in the confines of the city, absent prior permission. This thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.” [my emphasis]

One last note – the remarkable thing about this case, and what may have emboldened the ULC – is that the FAA did not participate in the suit. This was strictly Doctor Singer’s doing.

But preemption is not the whole story.

UNITED STATES v. CAUSBY

The case that is fundamental to understanding the ULC’s position, is United States v. Causby, a Supreme Court decision in 1946.

The backstory is kinda cute. Causby was a North Carolina chicken farmer whose coops were a quarter of a mile from a runway used by the army and navy. The aircraft, including heavy bombers, came in low and slow for days on end scaring some number of chickens to death.

Causby quit the chicken business and sued the United States, arguing that he owned the airspace above his farm and that by flying their planes, the government had confiscated his property (called a ‘Taking’).

The Supremes upheld the lower court and found for Causby.

We have said that the airspace is a public highway. Yet it is obvious 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.

The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. [my emphasis] 

Here is what the decision did not address:

The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are.
[my emphasis] 

Talk about kicking the can 70 years down the road…

THE ULC ‘BRIGHT LINE’ PROPOSAL

Central to the ULC proposal, effectively to ensure “full enjoyment,” is the concept of a ‘bright line rule’ for aerial trespass.

I know – many of you chose not to go to law school. Here is the
Wikipedia definition:

The purpose of a bright line rule is to produce predictable and consistent results…

This is the UCL document Draft for Discussion Only: Tort Law Relating to
Drones Act
.

Before we go any further I want to stress that this is a draft. Mark McKinnon of LeClair Ryan was kind enough to answer my questions about the ULC process. He told me that:

From what I can see, it looks like the ULC approved seven new uniform acts [at their annual meeting this week], but the drone tort law was not one of them. I assume that based on the meeting, there may be revisions and another effort in the future. A draft act has to be considered in at least two meetings before it can be passed, so the process is a slow and steady one.

I also heard from others, some of whom attended the meeting this week, on background. Their comments are interwoven without attribution. They confirmed that this was the first public reading. About 50 interested ULC Committee members were on hand for the two-hour review, as well as observers.

The document begins with a lengthy, carefully constructed rationale. It concludes on page 12:

The ease of access to unmanned aircraft technology, the scale at which drones are already operating, and the low altitude airspace in which these aircraft must operate, all suggest that a uniform law for per se aerial trespass is necessary.

The Act has two sections:

SECTION 301. PER SE AERIAL TRESPASS. So far, this is the one stirring up all
the discussion.

SECTION 302. TORTIOUS ACQUISITION OF IMAGES, RECORDINGS OR PHYSICAL OR ELECTRONIC IMPRESSIONS USING AN UNMANNED AIRCRAFT.  Perhaps the subject of a future issue.

On page 14 we find:

SECTION 301. PER SE AERIAL TRESPASS.

(a) A person operating an unmanned aircraft is liable to a land owner or lessee for per se aerial trespass, when the person, without consent, intentionally causes the unmanned aircraft to enter into the airspace below [200] feet above the surface of land or below [200] feet above improvements built upon the surface of land. [my emphasis] 

That is 200’ AGL (two hundred) – no typo.

In b) there are seven specific exclusions. I am guessing they reflect industry input during the development process.


a) is bad but it is c) that will impact the industry


(c) Consent to enter the airspace described in subsection (a) may be given verbally, in writing or through electronic consent… Consent must be freely given, specific and informed and must unambiguously indicate the wishes of the party granting consent.

Play this out. Unless the individual RPIC or COA holder is specifically excluded in b), UTM will have to manage this for every single flight that is not operating over the RPIC’s own property. (e.g. a oil company employee flying over a refinery.)

That said, AirMap’s Greg McNeal is actively involved as the Committee ‘Reporter’ (normally a scribe role) and Reginald Govan, who I will introduce in a minute, is on the AirMap Advisory Board. One hopes that their expertise is helping to create a more balanced point of view.

Once again. I am not a lawyer – this is stuff that multiple judges will decide in the decades ahead. Though ULC of course argues that it does, I don’t see anything in Causby that can’t be argued the other way, nor do I see how it gets around the ruling on preemption.

Once again, Mark McKinnon:

“With regard to Singer v Newton, it is interesting to note that the legal analysis accompanying the draft made no mention of Singer. Instead, it was based completely on United States v. Causby. I am just speculating, but I assume their position is that Singer is just the first decision on the issue from one court, and as a result, it is too early to know if other courts will draw the line on preemption in the same place.

Put another way, the people on the ULC Committee must be reasonably confident that they can prevail over the FAA on preemption. (Always remember I can’t make this stuff up.) And that Causby, being a SCOTUS decision, will stand for the foreseeable future.

Needless to say, many people have expressed their displeasure. But rather than spend a lot of time with people who agree with us, I think it is instructive to hear from those who support the ULC position. (All of the comments, both pro and con, can be found here.)

Perhaps the most interesting letter in support is from former FAA Chief Counsel Reginald Govan (2014 – 2017). He was the principal author of the December 17, 2015 “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet;” and was deeply involved in Part 107.

I found this portion of his letter to be particularly thought-provoking:

The FAA’s eminently reasonable decision to confine line of sight drone operations to altitude below 400 feet is predicated on its safety authority, not its adjudication of the property rights of every private landowner in America.

To be clear, the FAA’s determination that it is unsafe to operate small drones above 400 feet does not overrule or negate Causby’s rule that private landowners control the “immediate reaches” of airspace above their land.

Govan does offer one piece of advice that can only be considered favorable:

…There is nothing in the FAA Chief Counsel’s December 17, 2015 Fact Sheet or any official agency statement (of which they or I am aware) that would support the adoption of a private property owner’s right as a matter of law to exclude drone operations up to 200 feet altitude.

Indeed, were I providing advice to the Committee, which I am not, I would counsel against adopting an exclusion zone of 200 feet and counsel in favor of adopting a significantly more modest definition of the “immediate reaches” of airspace above private property. [my emphasis]

Jason Snead at the Heritage Foundation, which has traditionally advocated a bare minimum of UAS regulation, wrote that:

… During the Committee’s discussions on what altitude would be acceptable to define a right to exclude a drone, at least one industry representative expressed his desire that the altitude should be “zero.” The public is unlikely to accept such a one-sided policy outcome.

He concludes by making a powerful economic argument:

… A bright line aerial trespass standard balances the interests of the nascent UAS sector with the traditional rights of property owners to exclude unwanted intruders from their property. The alternative—reliance on manned aviation’s ill-fitting aerial trespass doctrine—will result in unpredictable and skewed outcomes, cumbersome and costly litigation, and may prompt a reactionary public response that would hinder the development of the UAS industry…

WHAT NOW?

This is not law – it is a draft that if ratified will become a proposal that states can choose to adopt – and adapt…

If the draft is accepted – after the second reading in 2019 being the earliest possible date – it will then take time to make its way on to the legislative agenda of each state that chooses to pursue it.

Mark McKinnon explains:

Once a draft act is approved by the organization, the members do lobby their state legislatures to encourage them to pass the draft act. The goal is to have the states enact it as written, but there is no requirement they do so. Even with something as successful as the Uniform Commercial Code, there is a fair amount of variation between the states on the exact wording they use.

Adoption is unlikely to be either uniform or parallel.

So what can you do? The Committee has called for industry and individual opinions. Here’s mine:


This may be a bright line on paper, but 200′ AGL is an awful tough thing to determine from a chaise lounge. And without Remote ID…


There will be opportunities to provide your opinion in person at future hearings, and by mail. I will report on them and you can sign up to follow the committee here, committee@uniformlaws.org. Since there are multiple committees it would probably be a good idea to put Drone Tort Law or similar in the subject line
and body.

The Facebook UAV Legal News & Discussion forum moderated by Vic Moss will also be a good source of information since this would hit the service provider community hard.

Once the ULC is finished, it will be necessary to work directly with the state legislature that is considering adopting the model law. Which as one person said, “Is an expensive, difficult and uncertain process.” At that point, the community will need to be prepared to offer alternatives.

Should you care? Where do you live?

Part 107 certificate holders by state – courtesy William McNeil

This map by William McNeil shows the distribution of Part 107 holders. Perhaps coincidentally California, Texas and Florida are the three most populous states accounting for 25% of the population of the United States. These are the states where I would expect that the law, if adopted, would have the greatest impact on the industry.

One last thing. If you are in the energy sector, please take the Energy Drone Coalition survey which is closing July 31st.

And if you need your faith restored, let me suggest Amazing Winners of ‘Drone Awards 2018’ Reveal the Best Aerial Photos of the Year. Guaranteed goodness.

Thanks for reading and for sharing. Back issues of Dronin’ On are here.

best,
ck

Christopher Korody
Editor and Publisher
chris@dronebusiness.center
follow me @dronewriter