Article was originally published on freightwaves.com by Jack Daleo on August 30th, 2021

Industry stakeholders have starkly different visions for regulating low-altitude airspace

Set in 2062, “The Jetsons’” whimsical world of flying cars and robot housekeepers captivated young viewers with a high-tech future. But Hanna-Barbera got it wrong: At least part of that future may be four decades early.

No longer the stuff of science fiction, highways in the sky are a very real proposition. Already, four states have test-run legislation that restricts drones to aerial corridors. Drone companies, states and the Federal Aviation Administration are working to regulate the national airspace, and many industry advocacy groups, regulators and operators see a drone “highway” model as the way forward. But they face a sizable and vocal opposition.

“I think people still think of drones as that Jetsonian future and don’t understand how close we are to really scaling them,” Casie Ocaña, marketing director for drone infrastructure company Airspace Link, told Modern Shipper.

The state of the airspace

Ocaña’s right — while we aren’t quite there yet, the legal framework for commercial drone operations has been steadily evolving. In August 2016, the FAA adopted Part 107, a rule that got the ball rolling for commercial drone flights. Since then, it’s approved the Operations over People rule, which allowed flights to take place at night and, unsurprisingly, over people; the Remote ID rule, which requires all drones to have remote ID installed by September 2023; and airworthiness criteria that will help certify drones as special aircraft. The FAA has also commissioned individual companies to test beyond-visual-line-of-sight (BVLOS) flights but has yet to adopt a sweeping regulation.

Those provisions have allowed for some pretty cool pilot projects. Airspace Link, for example, has partnered with DroneUp to deliver craft beer in Ontario, California, and collaborated with a group of companies to deliver a pair of kidneys for transplant in Ohio. It also recently coordinated a demonstration for local stakeholders and lawmakers, including U.S. Rep. Debbie Dingell, D-Mich., delivering snacks and drinks to golfers on a course in that state. But Airspace Link and others are ready to think bigger.

I think people still think of drones as that Jetsonian future and don’t understand how close we are to really scaling them.

CASIE OCAÑA, AIRSPACE LINK

Researcher Brent Skorup of the Mercatus Center at George Mason University has spent well over a year looking into a solution that would bring commercial drone delivery to the entire country. While it’s taken him awhile to warm up to them, he’s settled on highways in the sky.

“Traditionally, aviation has been largely a federal issue. It’s different with drones because they are flying at low altitudes, and you’re dealing with these nuisance and trespass issues and so forth. So it’s not clear where federal jurisdiction ends and state jurisdiction begins,” Skorup told Modern Shipper.

To work around that uncertainty, Skorup suggests a drone highway model in which states would lease state-owned aerial corridors above public rights of way — like highways and railroads — to drone companies, using avigation easements to fill in the gaps. An avigation easement would grant a state access to the airspace above private property without infringing on ownership. For example, many utility companies use a different kind of easement called an easement in gross to place things like telephone poles and pylons on private land.

Skorup envisions drone highways flying over public rights of way and easements while operators are fed real-time data on temporary flight restrictions, physical infrastructure and population density through a company like Airspace Link. He and Ocaña believe that these provisions, in conjunction with measures like noise and time-of-day restrictions, can make highways in the sky a reality.

“We want to take the industry to the next level of mobility with drones, but we don’t want them to become the next scooters, where it’s a pain for the city, consumers are tripping over them, they’re everywhere, there’s no guidance,” Ocaña said. “We want to provide the guidance and make sure … that it’s not a nuisance to the public, that it’s as safe as possible and that everyone has a voice to help shape how drones will be used in their communities.”

At least one major drone operator aligns with Skorup and Ocaña’s vision. California-based unmanned aerial vehicle logistics company Volansi is using a similar model for its drone trials in Africa, and CEO Will Roper, former assistant secretary of the U.S. Air Force, says the company hopes to bring that system back home.

“At Volansi, we believe building reliable autonomous drones for reliably controlled airspace is key to accelerating delivery,” Roper told Modern Shipper. “Our current operations in Africa focus on creating aerial delivery ‘sky lanes’ for mining customers. In the future, we hope to expand this to an interconnected network of drone pickup-and-delivery sky lanes, independent of poor or congested infrastructure.”

The arguments in favor

Skorup and Ocaña see drone highways as an attractive model for several reasons. One, they can save drone companies from a legal headache — as far as drones have come, lack of regulation makes them vulnerable to lawsuits.

“Every legal scholar who’s approached the issue has pointed out that there are a lot of legal issues that arise when drones are flying above private property. You’ve got nuisance issues, trespass issues, privacy and also takings,” Skorup explained. “And so with the idea of a drone highway, particularly if it’s above the public rights of way, you can avoid a lot of these legal issues.”

He cites a recent case in Michigan as an example of the legal throes drone companies can face in an unregulated system. In Long Lake Township v. Maxon, a state appellate court sided with landowners who sued a drone company for flying over and surveilling their property, ruling that the company had violated the Fourth Amendment.

There’s a fear from state, federal and local lawmakers about a kind of Wild West situation. Drone highways are a way of preventing those fears.

BRENT SKORUP, MERCATUS CENTER

Drone highways could eliminate that legal risk by restricting drones to airspace above easements and public rights of way.

Another key benefit of drone highways is that they can alleviate the regulatory gridlock that’s plagued federal lawmakers in the five years since Part 107 was introduced. Because the delineation of U.S. airspace is so variable from state to state and city to city, drawing up a one-size-fits-all rule hasn’t been easy. In the model Skorup envisions, the FAA would delegate regulatory authority to individual states to run their drone highway networks as they see fit — that way, drones can get up and running without running (or flying) amok.

“There’s a fear from state, federal and local lawmakers about a kind of Wild West situation,” he said. “Drone highways are a way of preventing those fears.”

The arguments against

Not everyone in the industry has a rosy outlook on a state-by-state drone model. Doug Johnson, vice president of emerging technologies for the Consumer Technology Association, believes it would be a disaster.

“Louisiana, Mississippi, Texas and West Virginia each introduced a flavor of the same idea. And none of those bills succeeded,” Johnson told Modern Shipper. “Our view is certainly that these kinds of bills and these kinds of restrictions of the airspace will be detrimental to drone operations and the growth of this technology.”

Johnson instead supports a regulatory regime headed up by the FAA to create blanket federal restrictions around drones. His trade group focuses on educating state legislators about the drawbacks of airspace leasing and avigation easements and helped come up with an industry standard for drone serial numbers that enabled the FAA’s Remote ID rule.

“[Drone highways will] make it difficult, in this sort of a scheme, for companies to implement plans for their operations,” Johnson explained. “Along these toll roads in the sky, the requirements could change from one jurisdiction to another, so that all would be problematic for the sake of an organized approach to integrating drones in the national airspace.”

He argues that drone highways could actually result in more lawsuits for this reason. Johnson also notes that a lack of federal drone laws could spell calamity from a safety perspective if drone companies were forced to operate under different sets of rules and restrictions in every state.

“If you chop up the sky into traffic lanes or toll roads in some cases, as has been proposed, you’ll end up with a very messy low-altitude airspace and a variety of local restrictions, which, in the eyes of the FAA and certainly in the eyes of the industry, is a problem for safety,” he said.

If you chop up the sky into traffic lanes or toll roads in some cases, as has been proposed, you’ll end up with a very messy low-altitude airspace.

DOUG JOHNSON, CONSUMER TECHNOLOGY ASSOCIATION

The other major criticism is drone highways’ restriction of airspace, both physically and economically. Even Skorup, a proponent of the model, concedes that this could pose problems.

“You can’t have 100 drone companies operating above the public rights of way. But if you just have one, then you’re raising competition issues,” he said. “It becomes a monopoly service in that town or city or county.”

Johnson worries that these limitations could result in states leasing airspace to the highest bidder, cutting smaller drone companies out of the equation altogether. That competitive model also means that the winning bidders would need to raise their prices to compensate for inflated leasing rates, resulting in more expensive drone deliveries for end consumers.

There’s also the problem of having flights restricted to aerial corridors above public rights of way, which goes against the ambitions of larger drone operators hoping to expand into BVLOS operations or delivery to private residences.

Federal regulators appear to support Johnson’s position.

“The FAA’s long-term goal is to fully integrate drones into the national airspace system, rather than setting aside separate airspace exclusively for drone usage,” Crystal Essiaw, a spokeswoman for the FAA, told Modern Shipper.

The road overhead

One drawback of Johnson’s vision is that it could take awhile. Five years ago, Congress directed the FAA to establish a rule designating and protecting critical infrastructure, including airspace. There’s still no rule. In the interim, states have tried to come up with their own rules, but that fragmented approach could just lead to more legal headaches.

“I see a big area of legislative activity at the state and local level concerning critical infrastructure. And that sort of piecemeal approach has happened largely because there hasn’t been a national, organized approach to drones and critical infrastructure,” Johnson said.

However, the FAA in June established a new advisory rulemaking committee (ARC) to address BVLOS laws, which Johnson says is the biggest opportunity for commercial drone operations to grow. Those rules would open up routes over remote areas and free up drones to fly outside designated aerial corridors.

The FAA’s long-term goal is to fully integrate drones into the national airspace system, rather than setting aside separate airspace exclusively for drone usage.

CRYSTAL ESSIAW, FAA

“Moving BVLOS regulations forward is the FAA’s top UAS [unmanned aircraft systems] priority, and one of Administrator Steve Dickson’s highest rulemaking priorities for the coming year,” said Essiaw. “The FAA also is working collaboratively with the drone industry and state, local and tribal governments to address community and societal considerations on when, where and how to enable various drone operations.”

Skorup, though, points out that the U.S., for all of its wealth and power, is behind countries like Rwanda and China when it comes to commercial drone delivery. Rwanda, for example, had established a national drone delivery network by 2016. The sluggishness of U.S. legislation in comparison to other nations makes state-run drone highways more attractive than a federal regulatory regime in his eyes.

“China in particular, they view autonomous aviation and drones as a major pillar of the future economy, up there with artificial intelligence and 5G,” he explained. “I think the FAA has done a pretty good job, considering the constraints it does have. … But the FAA is much more cautious.”

Johnson would argue that there’s good reason for that caution. He describes drones as “the most accessible form of aviation you’ve ever seen,” and one that needs to be regulated accordingly to limit a slew of potential legal and safety issues. But at the end of the day, he emphasizes, all of the major drone delivery stakeholders are on the same team.

“There’re important shared interests, first and foremost. It’s not a situation of conflict so much as it is a scenario of a common interest here. The industry, the FAA and other policymakers certainly understand that this technology opens new doors and possibilities,” he said. “We all want the safe integration of this technology into the most complex airspace in the world here in the United States.”