By Maxwell Mensinger. Full text here.
The notion of a “next frontier” is in perpetual flux. Our understanding thereof shifts towards those concepts with the potential for change and growth. A century ago, with the development of commercial flight, airspace seemed to qualify as the next frontier. Today, drone technology has revitalized this same interest in exploiting overlying airspace for commercial use.
Long considered a pipe dream, the United States government now recognizes the inevitability of commercial drone technology. It is no longer coming—it is here. The Federal Aviation Administration (FAA), with authority from Congress, has crafted a welcome mat of regulations to greet and guide the expected influx of domestic drone traffic. But, as sometimes happens with government-sponsored welcome mats, this one threatens to scare off this technological newcomer, or at least dampen its promised impact.
This Note evaluates the modern regulatory landscape against the backdrop of its history—including the regulatory regimes and judicial precedents that came before. In so doing, this Note identifies foundational constitutional defects in the scope of regulatory power exercised today. Ultimately, this Note suggests a statutory cure that would clarify state and federal power over airspace, respect traditionally-recognized property interests, and strengthen the burgeoning commercial drone market which, in its infancy, remains quite vulnerable.