Planet Money
3:03 am
Fri May 30, 2014

Drone Wars: Who Owns The Air?

Originally published on Fri August 1, 2014 11:58 am

There are lots of entrepreneurs who would love to fly drones — tiny unmanned aircraft — all over the country. They dream of drones delivering packages and taking photos, but there's a battle in the courts right now standing in their way. The battle is about whether it's legal for drones to take to the sky.

The question at the core of the battle: Who owns the air?

It's a question that goes back to the Middle Ages, to a Latin phrase that translates to "he owns the soil owns up to the heavens." In England, this phrase was the law of the land for centuries, and it worked well when disputes involved simple things like overhanging tree branches and lopsided buildings.

But once hot air balloons and airplanes came into the picture, things got a lot more complicated. In 1926, Congress created what we now call the FAA, and declared that the air above 500 feet is the public domain. But what about the air below that?

Thomas Causby was a chicken farmer in North Carolina who lived near a tiny airport. During World War II, the Army took over the airport, and suddenly big military planes were flying over Causby's chicken coops all the time. The planes scared Causby's chickens. They flew into the walls of the coop and died.

Causby sued the government, and the case went all the way to the Supreme Court. In the end, the court sided with Causby, ruling that landowners own the sky above their homes up to at least 83 feet.

But the decision still left a gap. If the air above 500 feet is public property, and the air below 83 feet is private property, what about the space in between?

This is the territory that entrepreneurs dreaming of drones have their eyes on.

Cy Brown, for example, wants to use drones to tackle the problem of feral wild pigs. In Louisiana, where Brown lives, feral pigs run around wrecking crops, causing problems for farmers.

Brown's idea was to use drones to track the pigs and then relay their locations to hunters in the fields who could kill the pigs. He tested it out, and it worked. Farmers liked it. Even the U.S. Department of Agriculture wanted to copy it.

But when I called Cy last month to ask if he'd take me hunting, he said no. His drone had been grounded. When I asked why, he referred me to his lawyer.

Cy's lawyer told me that the FAA has been sending out cease-and-desist letters to commercial drone pilots all over the country, threatening big fines for flying little drones. The FAA says that, for safety reasons, it is regulating the airspace between 83 and 500 feet.

Drone pilots are fighting this in court, trying to reclaim that airspace.

You can find lots more drone coverage from our colleagues over at All Tech Considered.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

DAVID GREENE, HOST:

There are a lot of business people who would love to fly small unmanned aircraft, drones all over this country, delivering packages, taking photos. But they've got a problem. The law. There is a battle in the courts right now about whether it's legal to fly little drones in the sky and about who exactly owns the air. Here's Steve Henn from our Planet Money team.

STEVE HENN, BYLINE: This philosophical question goes back before the airplane, to English common law, actually to the Middle Ages. I never took Latin but there is a Latin phrase that's relevant here.

STUART BANNER: You know, I'm not even sure I'm even pronouncing this right.

HENN: Stuart Banner is a law professor at UCLA.

BANNER: (Speaking Latin) Cuius est solum, eius est usque ad coelum.

HENN: Translation, he who owns the soil, owns up to the heavens. In England this was the law of the land for centuries.

BANNER: The earliest cases involve things like overhanging tree branches, buildings that were built lopsided, so they leaned into the neighbor's airspace and so on.

HENN: During the Middle Ages this worked great. but enter hot air balloons and then airplanes, not so much.

BANNER: Wouldn't an aviator be trespassing everywhere that he flew?

HENN: Banner says that during the early days of aviation there were all sorts of proposals to solve this trespassing problem.

BANNER: Including ideas that sound pretty silly in retrospect like, making airplanes airplanes fly above streets.

HENN: Imagine if every transcontinental flight had to follow I80. That wouldn't work. So in 1926 Congress creates what we now call the FAA and declared that the air above the minimum safe altitude of flight is a public domain. Above 500 feet roughly public property. And for a while everyone seems okay with this. Except there is this one guy who is not okay with it at all. His name Thomas Lee Causby.

BANNER: Yeah, the Causbys were chicken farmers in North Carolina who were near what was a tiny airport that was barely used.

HENN: During World War II, the Army takes over the airport and suddenly big military planes are followed flying over Causby's chicken coops all the time.

BANNER: All the chickens died. They had to give up chicken farming. They had a baby who couldn't sleep.

HENN: So Causby sued. The case goes all the way to the Supreme Court and he wins. The court ruled landowners might not own the sky to the heavens but they do still own it up to at least 83 feet. To recap, congresses says above 500 feet this is a public highway. The air below 83 feet, according to the courts that belongs to landowners like Causby. But this decision left a gap, it created unclaimed territory in the air. And it is that territory that pilots of tiny little unmanned aircraft, little drones, have their eyes on.

(SOUNDBITE OF ARCHIVED RECORDING)

CY BROWN: It's gonna go right over your head man if you don't move.

HENN: Meet Cy Brown, drone pilot and kind of a character.

(SOUNDBITE OF ARCHIVED RECORDING)

BROWN: As long as it doesn't go on my head.

HENN: There's this video of Cy at a fishing Camp, where he Lures a big old alligator into the dock using his bare toes as bait.

HENN: And then bops him on the head.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CHILD: You got them.

BROWN: Yeah, I popped him right on the nose.

UNIDENTIFIED CHILD: Do it again.

BROWN: How about we do it with your toes.

HENN: Cy is willing to try stuff that wouldn't even occur to most people. Which is honestly how he got into drones. Where he lives in Louisiana there's this problem, feral wild pigs. They run around wrecking everyone's crops. They're hard to get rid of, they're hard to find in a field with waist high rice. But Cy came up with an idea.

(SOUNDBITE OF ARCHIVED RECORDING)

BROWN: You ready?

HENN: He took his little remote control airplane, a drone really and equipped it with heat seeking sensors. Then he flies this thing over fields at night. It sends video back to his laptop, the little piggies glow on the screen and he guides in a buddy with a gun.

(SOUNDBITE OF ARCHIVED RECORDING)

BROWN: Hey, them the tracks, oh, hey yo get him, shoot him more.

HENN: Even the USDA, the US Department of Agriculture likes Cys idea. In fact they wanted to copy it. But when i asked Cy last month if he'd take me hunting, he said no. It turns out his little drone had been grounded. I asked him what was going on and kind of paused. This guy who sticks his bare feet into a bayou and wiggled around his toes to tease an alligator told me I would have to talk to his attorney, which I did.

And it turned out that the Federal Aviation Administration has been sending out cease and desist letters, to commercial drone pilots all of the country threatening big fines for flying little drones. The FAA says for safety reasons that unclaimed airspace, that is still regulated by them. But this is still an unsettled legal question. Drone pilots are fighting back in federal court and guys like Cy are waiting for somebody to tell them if or when they can fly. Steve Henn, NPR News.

GREENE: This is MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.