As U.S. based drone pilots and operators, we are able to enjoy responsible flights in just about the entirety of the National Airspace System (NAS).
If the current Uniform Law Commission’s (ULC) committee working on the “TORT LAW RELATING TO DRONES ACT” has its way, we could very likely lose 25% of that airspace.
And a very familiar name (who is not a friend to drone owners) has a very prominent position on that committee. And he is there wearing his Pepperdine University Law Professor hat instead of his AirMap Co-founder hat. We are speaking of none other than Mr. Gregory McNeal. This author finds it very interesting that Mr. McNeal is there under the Pepperdine banner and not the AirMap banner. Maybe it’s because AirMap stands to make quite a bit of money if this Act passes and he doesn’t want to appear to have a vested financial interest in the outcome of that act. But that’s purely conjecture.
More on that in a bit.
Some of you may be familiar with AirMap’s previous skirmish with the UAS community when it came to light that they were supporting Senator Feinstein’s Drone Federalism Act (SB1272, 2017). AirMap’s hired lobbyists not only supported the bill financially, they actively lobbied other legislators to vote for it. At least that’s the presumption, given emails sent to some in the UAS community by Senators who don’t agree with Ms. Feinstein’s bill. SB1272 text can be found here.
That Act, if passed, would give control of the first 200’ of the NAS over to local legislators. That act currently sits in the Senate’s Committee on Commerce, Science, and Transportation. It’s been there since May of 2017, and given Senator Feinstein’s fall from grace within her party, it’s unlikely to be advanced out of committee. This is a very lucky break for drone owners, whether they fly under 101/336 or 107 rules. If passed, it could have given political subdivisions the ability to shut down commercial and hobby drone operations in “their” airspace. That would have effectively killed the commercial drone business in those locales.
Luckily that act now seems to be stuck in bill purgatory. And we as a community should do all in our power to make sure it stays there.
So let’s talk about how SB1272 coincides with the ULC Committee’s work on the tort law act.
Section 501 of Tort Law Relating To Drones Act is titled AERIAL TRESPASS USING AN UNMANNED AIRCRAFT.
Until this point in our history, there has not been an easily defined legal criteria for a charge of Aerial Trespass. There have been a number of court cases that define it in certain instances, but those are very limiting, and can’t really be used to give a standardized legal definition in other cases. The Tort Law Relating To Drones Act, as currently written , will put into play a very easily defined legal definition of Aerial Trespass.
It states very clearly what that definition would be: “(a) A person operating an unmanned aircraft is liable to an individual for trespass, if, without consent, the person causes the unmanned aircraft to enter into the immediate reaches of the airspace above the land of another.”
On it’s surface, this seems unobjectionable, but in order to understand the magnitude of what this would do to the hobby and commercial drone communities, we need to look up “immediate reaches”. We don’t have to go far to find that definition. The authors of this Act were kind enough to provide that for us.
Under Section 102. Definitions, they include “(5) Immediate Reaches”. This is defined as the airspace from ground level to at least  feet above the surface, or where surface improvements are present, the airspace at least  feet above those surface improvements.”
Think about that. And that’s “at least”. Which means cities and states have the ability to increase it if they want.
If you are flying in an urban area, you would not be allowed to fly over any residence or property at an altitude of 100’ or less (above any improvements) without the fear of being cited for Aerial Trespass.
Now again, on the surface, this may not sound too limiting. But let’s put a real world drone spin on it.
If you use a drone for real estate photography and videography, you find yourself routinely flying below 100’ above improvements on adjoining property. Insurance and inspection flights routinely fall under that same demand. Neither of those UAS disciplines can effectively do their jobs if they are limited to being 100’ or above adjoining property improvements.
And those are just two examples. There are plenty more.
Current aerial trespass doctrine is, “Flight by an aircraft in the air space above the land of another is trespass if (1) “[the aircraft} enters into the immediate reaches of the air space next to the land, and (2) [it] interferes substantially with the other’s use and enjoyment of the land.” The ULC committee feels this definition is problematic because "there is no existing right to exclude aircraft from flying above one’s land without showing interference with use and enjoyment of the land.”
They also are trying to make it sound like they are doing the UAS communities a favor because “this will likely prove problematic as it will require a fact-specific showing related to each overflight before an unmanned aircraft could be excludable, leading to uncertainty and lack of uniformity.”
The committee feels if there is a legal definition of 100’ as “immediate reach”, it will make our jobs easier because we’ll have the uncertainty of where we’re allowed to fly removed from the equation.
This can’t be further from the truth, and smacks of behind the scenes activity with zero input from the people this will directly affect. It appears Mr. McNeal does have a Remote Pilot Certificate (at least someone with his name does), but apparently none of the other representatives do. There are two members with names too common to check, so that is also a possibility. But if Mr. McNeal is the only one “representing” UAS owners, we’re screwed.
While I commend Mr. McNeal for getting his 107RPC, I’d like to see someone on that committee who uses their 107RPC to make money with, not someone who uses it to make money from. There is s difference.
Why does the history of Mr. McNeal seem to suggest that he wants to drastically limit where drone owners can fly? And we’re not even bringing up www.noflyzone.org. Do a bit of research on that failure. But it was his first attempt at restricting our rightful access to the NAS.
To answer that questions, we need to look no further than the company that Mr. McNeal founded with Mr. Ben Marcus: AirMap.
AirMap is a company that has developed an app that allows UAS operators and pilots to see if they are in a safe area to fly. Very commendable. And their product is awesome. It’s the backbone of DJI’s GEO System. I don’t use it (I use Skyward, and KittyHawk once it comes on line), but those who do seem to like it very much.
But behind that is AirMap’s desire to work with states and localities to implement Unmanned Aircraft System Traffic Management (UTM). More info here.
UTM is a great idea, and in practice will make the skies safer. However, if done incorrectly, or with undue influence from company’s that will directly benefit from its implementation, it can and probably will lead to a pay to play system. There you will have to subscribe to a service before you can fly in certain airspaces. In other words, pay the subscription or not fly there. Even though we have that right currently.
AirMap already has their foot in the door in Kansas.
If McNeal and Marcus end up being the chosen UTM provider for the other 49 states, they stand to make a ton of money. And there is nothing wrong with that. It’s the American Dream. It shouldn’t be at the expense of an entire industry.
When they stand to make that money on the backs of an industry they publicly profess support for, their words becomes very disingenuous.
You have to ask yourself why a company would actively be trying to make it harder for UAS owners to fly in the U.S. Especially if that company is supposedly working with us, in order to gain quicker access to the NAS in restricted areas. Are you working for us, or against us AirMap?
These actions seem to speak volumes about the seemingly true intent of their business model. It’s about making money, not keeping the NAS safe, or tenant/homeowner privacy.
Given the track record of the founders of AirMap, I strongly suggest that UAS owners, both 101/336 & 107, keep a very close eye on this committee’s work. If it continues down this path, keep your Congress Critters informed of what will happen if the Uniform Law Commission’s Tort Law Relating To Drones Act is put into law.
To sum it up, there is no reason for this committee to even be meeting. There are plenty of laws already on the books that would address these issues. And there is already SCOTUS law in place to protect homeowners and tenant privacy. The only viable reason for this law to is create a “pay to fly” system. And that flies (pun intended) in the face of our freedoms as UAS owners. This is NOT a safety issue at all.
It is imperative that the entire UAS Community keep a close eye on this committee and let them know that their plans will drastically affect our ability to enjoy our hobby, as well as perform our jobs.
If you would like to be added to the email list keeping interested folks informed, please email, and ask Ms. Grelle to add you to the TORT LAW RELATING TO DRONES ACT list.
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