Irresistible Altitude

While drone airspace is complicated, it is defined. Hobbyist UAS flight should operate under the guidelines of remaining well clear of structures, not clear of people, and of course not within 5 nmi of airports, any airport, whether a large public commercial airport with multiple runways or a small farm strip. (Fortunately the FAA makes it easy to locate these airports with an app.)
Commercial UAS – those operated by someone with a unmanned aerial aircraft license, a Part 107 license – have tremendously more leeway to operate. Part 107 pilots require permission from property owners to fly over structures, but once granted that they have leeway to operate over buildings, towers, even over airport structures. Part 107 is potentially the avenue that will allow us to order a meal via your phone from your sofa or local ballpark and have it delivered to you.
Several obstacles remain between ordering burritos from your sofa and its delivery via drone, specifically waivers and the potential for kinetic damage, the cultural acceptance, and a general lack of structure, cultural and legal, defining more clearly the rights and responsibilities of overflight.
States such as the commonwealth of Virginia and New York state have passed state laws making local ordnances restricting operation of drones in town and cities, yet such localities such as Leesburg, VA, still do pass ordnances restricting drone operations to particular subsections of public airspaces. (“Ida Lee Park is the only Town of Leesburg park that has a FLY ZONE.” http://www.leesburgva.gov/government/departments/parks-recreation/town-parks/uas-and-rocket-flights).
The danger from kinetic damage is substantial – notable cases include blinding and death from out-of-control drones descending rapidly. FAA and its advisory committees have created a kinetic standard based on the impact assessments conducted by university researchers. This kinetic research has enabled FAA to feel safety can be preserved in certain cases. The FAA granted a blanket waiver to CNN, using the VantageRobotics Snap drone to fly over people. Snap is designed to break apart on impact, sparing persons on the ground from grave injury. Such waivers are just beginning. If past history is any guide, it will be years at least before such waivers are commonplace. The attached graphics show Part 333 waiver approvals over time – the curve starts slowly, gains rate, and then goes exponential – and Part 107 waiver approvals over the past 14 months. 333 and 107 rates.  As shown in the Part 107 waiver approvals, there have been very few waivers granted for flights over people. Part 107 pilots access an electronic portal to file for permission for such waivers; it will be years before this one-up request system is supplanted with routine blanket provisions for flight over people.

Another barrier is the potential for local opposition, including persons still removing drones from the airspace over their homes with shotguns. Practice seems to be coalescing around the 1946 Causby V. U.S. decision, which established freedom from flight intrusion up to 365 feet above a farm/residence. Other than the Act establishing the FAA, in which FAA was given authority over all the US airspace, the U.S. Congress does not appear to have made a legal definition of “public” airspace. (There’s a thorough examination of law and case law about airspace rights, see Marquette law review in 1953: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3130&context=mulr.) While there is agreement on this legal standard, Part 107-operated drones should operate within 400 feet AGL, which puts them in someone’s property, unless they pursue a high altitude waiver; so uninvited operation of a drone over a home is in violation of property rights (Though taking down an uninvited drone over your property with a shotgun is also illegal in Virginia).
Part of creating an ability to navigate widely in populated areas is going to require more definitive establishment of the rights in airspace for landowners and an establishment of public access for drone flight, followed by widespread publicization of the standard. This could be simply established with an act of Congress, but would require inputs from the UAS community and the FAA, and given that Congress has not acted on the topic since 1946, an act seems unlikely. Homeowner ownership of airspace of up to 500 ft, would wipe out any unwaivered Part 107 operation.
Under one possible solution, if the FAA changed commercial Part 107 operation to the airspace from 500 to 699 feet, this would both avoid the homeowner zone, but increase the kinetic damage of uncontrolled descent. General aviation operational floor is 1000 ft AGL above populated areas and 500 ft above unpopulated areas for general aviation travel, so the general aviation operational area would have considerable UAS-GA collision hazard. While Part 107 pilots are required to re-certify after 24 months, there is no retest requirement for manned pilots other than currency in aircraft, so the public awareness campaign among GA would have to be pervasive to inform rural going pilots of the new hazard.
Under a second possible solution, landowners could grant access to their “owned” airspace – particularly to enable deliveries to their own residence by authorized delivery services such as Dominos, drycleaners, UPS, etc. in a public register, which would establish specific rights of access over homeowner airspace.
Under a third possible scenario, even if drone flight is restricted to over public lands – such as over roads and driveways – the altitude restriction is still a safety issue with regard to other aircraft traffic.
Having established clear boundaries, assuming that landowners have had their altitude rights restricted, there is an additional need for marking aircraft. GA aircraft are adorned with tail numbers, their registration numbers. In North America, these registration numbers all begin with “N.” For practical reasons, some sort of apparent registration or marking on commercial drones will be needed, and possibly on hobbyists as well. If a landowner has restricted access to his owned airspace and the airspace is violated, the landowner needs to have a method of filing a complaint, which would argue for ALL drones to have id numbers. Unauthorized drones might include invasions of privacy, ranging from nosy neighbors to peepers to news organizations and more. Marketing organizations would use drones to provide in-home targeted advertising, possibly with audio tracks, unless this is specifically enjoined. The possibility of terrorist use of UAS cannot be ignored. In Iraq and Afghanistan, drones are used to deliver lethal payloads, and it is not impossible to imagine that a terrorist could make use of a drone within the US to conduct bad acts on a local scale, like the rogue truck on the Manhattan bike path last weekend. ID marking of drone seems inevitable from a privacy, safety, and security point of view. Resolving the airspace conflicts is not so clear, and could be the sticking point that prevents the rise of drone e-commerce.