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Game of Drones: The ULC Enters Its Final Season

Game of Drones: The ULC Enters Its Final Season

June 17, 2019

This article is co-authored by Josh Turner and Sara Baxenberg.

Over the past couple of years, the Uniform Law Commission (ULC)’s work on drone tort law has become a topic of conversation and careful attention throughout the unmanned aircraft system (UAS or drone) community.  Last year, the ULC considered a draft uniform drone tort law that would have jeopardized the future of the UAS industry, which sparked widespread concern; this year, going into its final meeting, the ULC’s drafting Committee has worked hard to address the issues raised by industry and government stakeholders and is proposing a substantially revised draft.  While not perfect, a broad range of industry groups have signaled that they can support this new approach.  But will this new draft make it through the full Commission’s annual meeting unscathed? Read on…

Previously, on ULC’s Tort Law Relating to Drones…

Founded more than a hundred years ago, the ULC’s mission is to bring uniformity to state laws in key areas.  Its most well-known product is the Uniform Commercial Code, but the organization (composed of Commissioners officially designated by the various state governments) regularly works to identify new areas that could benefit from uniform laws. 

Recognizing that disparate state laws could pose a problem for the nascent drone industry, the ULC created a Tort Law Relating to Drones Committee and tasked it with drafting a uniform law that could be adopted by the states.  In keeping with the two-year timeline that is typical of ULC drafting committees, the Tort Law Relating to Drones Committee presented its first draft uniform law at the ULC’s annual meeting in Kentucky last summer, with an eye toward presenting the final version this summer at the ULC’s 2019 annual meeting in Alaska.

The 2018 draft caused a storm of criticism.  The Committee had decided to base that first draft on a “per se” rule, which declared that all UAS flights (with certain specified exceptions) below 200 feet were a trespass as to the land below unless the UAS pilot first secured permission from the landholder.  In other words, a landowner could have sued a drone operator for trespass any time her aircraft dipped below 200 feet; the per se rule turned every landowner into a mini air traffic controller, responsible for the airspace above her property.

A range of commenters objected, noting that the per se rule was unworkable from a practical standpoint and that it was inconsistent with the widely accepted role of the federal government as maintaining sovereignty over all of the airspace.  Indeed, even the Department of Transportation and FAA weighed in, arguing that the per se rule represented a seismic shift in the law and that courts had never simply applied traditional trespass principles to aviation.  

The Committee took these comments and concerns seriously.  Over the past year, working with a variety of stakeholders including representatives from industry, think tanks, and others at meetings in Detroit and Washington, D.C., the Committee has developed a different approach.  Rather than an arbitrary line in the sky below which there is a per se violation, the new draft recognizes that the real concerns that land owners have relate to their ability to use their land as they wish.  As a result, the current draft adopts traditional “aerial trespass” principles to UAS, and states that a drone operator is liable for an aerial trespass when the drone substantially interferes with the use and enjoyment of the property.  At the same time, the draft recognizes that the same technologies that make drones so useful can, if misused, interfere with property use in ways that are different from manned aviation.  To address this, the draft contains a series of enumerated factors for courts to consider in determining whether there has been interference that try and get at the ways that drones can be different—things like the height and duration of the flight, the purpose of the flight, and so on.  At the same time, the draft contains presumptions against aerial trespass for first responder operations and for activity covered by the First Amendment.

It has been a long road getting to this point, but on Friday, June 15 a coalition of industry stakeholders—including AUVSI (the largest unmanned systems trade group), the Consumer Technology Association, CTIA, the Chamber of Commerce, among others—submitted a letter in support of this new draft, urging its adoption at the annual meeting in Alaska and then in the states next year.

In Next Month’s Episode…

But the story is not over yet—there may even be time for one last twist.  The full Commission meets in Anchorage in July to debate whether to adopt the draft Tort Law Relating to Drones Act, and at that meeting it is possible—perhaps even likely—that there will be amendments proposed.  At the Committee’s last telephonic meeting, in May, a proposal was offered that would have added back in elements of the per se rule, establishing a presumption of trespass if the drone flew below the level of the highest structure on a given piece of property.  This proposal raised the same theoretical issue as the per se rule (dividing the airspace up into balkanized property controlled by millions of individuals rather than a single national sovereign), but was somehow even less practically workable than the 200 foot line in the sky (UAS operators would need to determine not only who owns the property beneath their operations, but also what the height of the tallest structure on that property is, before determining whether consent would be necessary—information that would vary from parcel to parcel and which would not likely be available in any accessible database). 

The Committee voted that eleventh hour proposal down by a wide margin, but a number of property-rights focused stakeholders are pushing for something like it to be included in the ULC’s final act, so it will not be a surprise if a similar amendment is offered in Alaska.  Moreover, the First Amendment presumption against trespass has met with skepticism amongst some on the ULC, so it’s very possible that Commissioners will seek to amend the draft to remove this presumption.  

The ULC’s two-year drafting process will culminate in the July annual meeting, where a final decision will be made about whether to adopt the draft, and if so, whether to modify it to return to some of the problematic elements that the Committee moved away from this year.  The draft is up for discussion on the afternoon of Saturday, July 13—so whatever way this saga ends, we should know by then.

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