Pierce Giboney, Don’t Ground Me Bro! Private Ownership of Airspace and How It Invalidates the FAA’s Blanket Prohibition On Low Altitude Commercial Drone Operations

67 Fla. L. Rev. 2149 |

Abstract

In years past, society has typically associated the word “drone” with the War on Terror and far-off battlefields. With the advent of the smart phone revolution, however, the once prohibitive costs of the technology have decreased to a level the general public can afford. As a consequence, a rising number of entrepreneurs associate the word “drone” with opportunity—a means of reaching a new commercial frontier, provided they can get off the ground.

Purportedly due to the lack of a regulatory framework governing the new technology, the Federal Aviation Administration (FAA) has essentially prohibited the use of drones at any altitude for “business purposes.” With the prohibition likely to remain in place for the foreseeable future, many of these would-be entrepreneurs choose to fly in open defiance of the FAA. Some of these drone pilots challenge whether the FAA even possesses the authority to impose the prohibition. The FAA responds to these challenges by insisting that it alone has the power to regulate the safety of all airspace “from the ground up.”

While the U.S. Supreme Court has held that landowners retain a right to own the “superadjacent” airspace above their property, the Court has left undefined the precise limits of superadjacent airspace. However, utilizing drones provides an opportunity to define “superadjacent” and, more importantly, establish the outer limits of the FAA’s authority over the lower airspace. This Note argues that the FAA’s broad interpretation of its authority cannot be reconciled with the Supreme Court decisions regarding landowners’ rights to own airspace above their property. This Note concludes that given the Supreme Court precedent, the FAA’s blanket prohibition on the use of drones for “business purposes” is an invalid exercise of its authority.

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