John Roska: Law leaves model aircraft mostly unregulated

John Roska: Law leaves model aircraft mostly unregulated

Q: Are model planes and helicopters regulated in any way? Is it legal to fly them over other people's property? What about using them to take pictures or videos? Can I stop someone from flying one over my property?

A: Model aircraft are mostly unregulated. That leaves people to settle their disputes about them among themselves.

Model aircraft are small, low-flying drones, used privately, for recreation. Commercial aircraft are more regulated than "civil" aircraft, so using a model plane for any commercial operation is either prohibited, or very difficult.

So we're only talking about civil (noncommercial), unmanned, small and low-flying aircraft.

Before aircraft could navigate the skies, common law property principles said that whoever owned the land owned the area above it "to the heavens," and completely controlled that airspace.

Now the Federal Aviation Administration regulates "navigable airspace." For aircraft, that's defined as that "airspace above the minimum altitudes of flight prescribed by regulations," along with "airspace needed to ensure safety in the takeoff and landing of aircraft."

Regulations require a minimum altitude of 500 feet — 1,000 over "congested areas." Helicopters and "powered parachutes" can fly lower if "the operation is conducted without hazard to persons or property on the surface."

That means — generally speaking — airspace below 500 feet is not navigable, and therefore unregulated by the FAA. But the FAA protects air safety, so they don't like stuff in the lower altitudes messing with air travel.

Until recently, civil unmanned aircraft weren't much of a worry. But in 2012, Congress gave the FAA a September 2015 deadline to "provide for the safe integration of civil unmanned aircraft systems into the national airspace system."

The law, however, explicitly told the FAA to leave model aircraft alone: "the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft." Over 55 pounds, though, it's not a model aircraft.

That's in keeping with the FAA's existing position on the subject, set out in their 1981 "Model Aircraft Operating Standards." They urge you to keep things below 400 feet, and, if you're flying within 3 miles of an airport, to let the airport know. Otherwise, "select an operating site that is of sufficient distance from populated areas," and avoid "noise sensitive areas such as parks, schools, hospitals, churches, etc."

But, since the FAA can't regulate it unless it's in navigable airspace, compliance with this "advisory" is voluntary.

Leaving model aircraft unregulated by Uncle Sam leaves it up to private individuals to settle disputes about them. That developing law pretty much relies on old common law doctrines. According to the Supreme Court, property owners still possess and control "the immediate reaches of the superadjacent airspace."

Model aircraft in your airspace could be trespassing, by interfering with your possessory rights. Possibly, that permits you to down the intruding aircraft.

Even without trespassing, model aircraft could be a nuisance, by interfering with your right of quiet enjoyment of your land. And even if it's not a spy drone, they might be an invasion of privacy.

Over time, that will get sorted out in the courts, as people sue each other.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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