Who owns the air above your home?

Can a drone pass over private property while following Part 107 guidelines?

by: logan campbell

In the United States, the Federal Aviation Administration (FAA) has the sole authority to regulate all "navigable airspace", exclusively determining the rules and requirements for its use. The prevailing understanding is that a property owner can claim airspace that they are actually using (e.g., the trees and building structures on your property that occupy “your” airspace), but all other airspace is regulated by the FAA.

The two categories of airspace are: regulatory and non-regulatory. Within these two categories, there are four types: controlled, uncontrolled, special use, and other airspace. The categories and types of airspace are dictated by the complexity and density of aircraft movements, nature of the operations conducted within the airspace, the level of safety required, and national and public interest. The image below presents a profile view of the dimensions of various classes of airspace. See:https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/phak/media/17_phak_ch15.pdf

I have airports and controlled airspace near my projects. Is it legal to fly there?

Over 98% of the land in the United States does not require any authorization to fly a drone up to 400’ above ground level; however, there are still major portions of US cities that are in controlled airspace. Thankfully, over the past few years, the FAA has considerably loosened their airspace restrictions, while also making it much easier and faster to get one-off airspace authorizations for project sites near, or even on airports themselves. Of the 15,000 airports in the US, fewer than 900 are in controlled airspace that requires authorization. Moreover, of those, nearly 500 airports participate in the FAA’s LAANC program. LAANC is the Low Altitude Authorization and Notification Capability; it provides access to controlled airspace near airports through near real-time processing of airspace authorizations below approved altitudes in controlled airspace. Non-participating airports can still grant authorization through a manual filing if needed. So in almost all cases, the answer is “yes” it’s legal to fly there, and it is much easier to get approval than it was even one year ago.

What is LAANC?

But, who controls the airspace above your home? This question is beginning to generate a lot of attention lately. Under the current law, there is no clearly defined line to understand the answer. The courts have been kicking this concept around for decades and until recently have had relatively little need for clarity. Considering the increasing use of drones from both commercial and recreational users flying in this space, there is growing pressure to resolve this lack of clarity. The “grey area” has yet to be defined.

Surface land is divided into clearly defined parcels under the control of local government to protect property owners, whereas “navigable airspace” is under the control of the federal government to keep the airspace safe for manned aircraft and the public below. The area between these spaces is considered low altitude airspace – a grey area that does not clearly belong to either group. Loosely translated, the FAA is responsible for “navigable airspace,” which is defined by commercial and general aviation’s lower altitude limit of 500 feet above ground. Private property, on the other hand, has been loosely defined as owning at least as much space above the ground as they can use in connection with the land. The courts set precedent on this matter in the late 1940’s at approximately 85 feet above ground. See: https://www.law.cornell.edu/supremecourt/text/328/256

This is a messy subject to dig into for most non- legal professionals, but for drone operators the law’s vagueness presents issues on a daily basis. From the property owner’s perspective, there are privacy and ownership issues to be considered and from the FAA’s viewpoint there are concerns about air traffic and public safety. Both sides have legitimate interest for safety and privacy and they are both closely monitoring the drone industry. We have all seen drones flying in many locations, and often even being piloted by our neighbors. Is it okay for your neighbor to fly over your house at 50 feet? how about 100 or 400 feet? If manned aircraft don’t fly below 500’ what business does the FAA have governing the area above your house below the “navigable airspace”? These questions will have to be resolved by the courts as more and more disputes arise.

The drone industry continues to develop drone technology at lightning speed. Drone technology has huge potential and we can expect to see drones becoming more of an integral part of everyday life. The reality is that unmanned and manned systems will all be traveling through this “grey area” with greater frequency as capabilities and use cases advance. Clarity on control and ownership will come from a collaboration of efforts from lawmakers, the public, and drone users working together to keep people safe while enabling this technology to reach its full potential.

Moving forward, keep an eye on your local lawmakers. Many have already begun challenging jurisdiction on the “grey area” above private property by implementing contradictory laws. This state of legal contradiction is likely to be ultimately challenged at the Supreme Court level to establish precedent. Hopefully, the courts will establish legislation that allows us to continue flying and be able to use our drones wherever safe and responsible, for both commercial and recreational purposes.

We encourage drone pilots to be safe, use good judgement and be respectful as a rule. It is always good practice to notify property owners before flying over their property in order to avoid unnecessary conflict.

Questions? Contact us anytime at (949) 335-4323, or info@aerotas.com