One of the more memorable political ads that aired this primary election cycle depicted state Sen. Matt Rosendale, vying for the Republican nomination for U.S. House, shooting down a government drone with a rifle. He went on to say, “More taxes and regulations put Montana families out of work. Spying on our citizens: that’s just wrong.” What was even more interesting about the commercial is that his primary opponent, former state Sen. Ryan Zinke, has previously promoted developing drones in Montana for commercial use.
Perhaps this was just a coincidence. I doubt it.
To be clear, no one (at least no one I know) supports the federal government spying on its private citizens with drones. But now that private citizens own drones, both highly advanced and very basic, it is worth exploring how they are regulated and how a burgeoning industry has, for years, largely been left in limbo.
Often, at least in news reports, drones, or Unmanned Aircraft Systems (UAS), are affiliated with government overreach or targeting terrorists in far off lands. But it’s ironic that Rosendale took aim at a drone from a ranch, because, alas, ranchers use drones. At least they do until the Federal Aviation Administration tells them to stop.
National Public Radio’s “Planet Money” recently aired a segment on drones and how the government has left legitimate business owners in limbo while it drags its proverbial feet on what to do about them.
One entrepreneur profiled on the segment owns a company, Louisiana Hog Control, which used a drone equipped with heat-seeking sensors to track down wild hogs that were ruining crops. It was grounded. His plight is apparently common and partially rooted in a Supreme Court ruling that defined what a citizen owns above his or her head. How much of the air is private property?
Before airplanes, under common law a person who owned the land also owned the air above it. That changed in 1926, when Congress created the Federal Aviation Administration, which determined that airspace above 500 feet is public domain.
In 1946, however, the Supreme Court took further steps to protect private property owners when it ruled that low-flying planes caused a North Carolina man’s chickens to “jump up against the side of the chicken house” and die. It decided that the air above his land, up to 83 feet, was protected for the property owner. That still left a lot of unregulated air space between 83 feet and 500 feet, which mattered less until the advent of drones.
Now, an agency accustomed to regulating large aircrafts is deciding what to do with tiny drones. And the process is excruciatingly slow. Meanwhile, UAS operators around the country – ranchers who use them to find cattle and photographers who use them to take commercial images – have received letters in the mail that say they are breaking the law.
Recently, a federal judge struck down a $10,000 fine leveled by the FAA against photographer Raphael Pirker for using a drone. The court essentially said there is no law that bans flying drones, so the agency has no right to arbitrarily enforce rules not yet on the books.
And that’s the problem. Business owners with even small remote-control model aircrafts have been told they can’t use them for commercial purposes until the FAA figures out how to regulate them. Some were assured that all this would be sorted within months – and that was years ago.
While no one wants the government spying on him or her with drones, I doubt many think it should have a monopoly on using them either. Now the FAA says it will propose rules for small drone use by the end of the year. Those who use them are still waiting.