~By Benjamin Branche, Esq., Rob Lakind, Esq. Jason Sokel, Esq.
As the number of Unmanned Aerial Vehicles (“UAVs”) continues to increase for business and personal use, the question arises, “Who owns the airspace over my land?”
There is no easy answer to this question as airspace above an individual’s land has always been resolved on a case-by-case basis. Until recently, most people were not concerned about airspace above their property because most air traffic was passing at heights in excess of 1,000 feet (500 in non-congested areas). This is no longer the case with an estimate of 2.5 million drones being sold last Christmas season.
Due to the lack of oversight of lower air spaces, many states and local governments have begun establishing their own laws. While New Jersey has yet to pass any regulations, we can look to what other states have done as examples of what may be coming. Oregon implemented a law authorizing landowners to sue anyone who flies a drone below 400 feet over their land more than once
without permission, California has offered a bill establishing a no-fly zone for up to 350 feet above private property, and certain cities have implemented similar restrictions. Although such restrictions would seem to comport with the Federal Aviation Associations (“FAAs”) view of airspace, the FAA has commented that “A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe-and-sound air transportation system.” The agency recommended that any states or cities considering laws on restricting drone flight altitude
consult with them first.”
Of course, the tug-of-war between the FAA and state and local governments would be an interesting constitutional battle, as states and local governments are the authority for regulating the property rights within their boundaries. However, the FAA is correct in its position that the regulations need to be consistent, especially with the future of UAVs in our society.
The range of uses for UAVs is limitless. Earlier this year UPS used a UAV in its package delivery business, and competitors surely will follow. Amazon is developing plans for its delivery network as well. UAVs have been utilized to assist law enforcement to find lost or missing individuals1 and companies are now using UAVs to evaluate property, perform aerial photography and much more.
With increased interest, it is important to understand all of the regulations that are imposed, even on those operating UAVs for hobby purposes. Although Section 336 of the Modernization and Reform Act of 2012 specifically limits the FAA’s right to regulate model aircraft flown for hobby or recreational use, the FAA has imposed various rules on UAVs that may qualify for the exemption. As a result, many of the 2.5 million drones sold last Christmas season may have to be registered with the FAA.
Although there are other factors, the most significant criterion for registration is the weight of the UAV. Any UAV over .55 lbs must be registered and the UAV operator must have a compliant label for identification and carry a Certificate of Registration. In some cases, it may also be necessary to take and pass the Part 107 Test or obtain a 333 Exemption (requires pilots license), depending on the circumstances. This is especially important if the Owner or Operator of the UAV intends to use the UAV for commercial purposes.
Although not specifically defined, a commercial purpose may be deemed any use that benefits a party’s business, clients, or generates revenue. As a result the FAA had sought to fine UAV operators who sold pictures or postedvideos on YouTube2. However, those using a UAV to examine a roof, take pictures of a property for sale, agricultural / environmental evaluations, or to entertain thousands of fans at a football game without proper registration, may be subject to criminal penalties and fines up to $250,000.
Before you fly, it is suggested you review the rules and registration requirements. A good place to start for this information is https://www.faa.gov/uas/getting_started/. However, if you have had an issue with the FAA, or you are unclear as to your requirements, it is best to consult an attorney with experience regarding the FAA and related regulations.
For those concerned with privacy and the impingement on property rights, there are options to keep drones away. Such options include Anti-Drone Rifles that use radio signals to disrupt the device, static drone jammers, drone notification systems, drone blinding lasers, drone hijack programs, and your faithful shotgun, among others. However, if harm is caused to the UAV, be aware that a lawsuit may follow.