Unmanned Aircraft Systems (UAS), more commonly referred to as drones, are becoming a fixture in U.S. airspace as industries seek to leverage them for delivery, infrastructure inspection, and aerial imaging. The United States, already the largest drone market globally, has seen projections indicating that by 2024 drone sales would quadruple compared to 2018 levels. Yet, despite this momentum, unresolved regulatory issues continue to constrain widespread commercial deployment.
Central to these constraints is the Federal Aviation Administration’s limitation on Beyond Visual Line of Sight (BVLOS) operations without waivers. BVLOS capability is essential for economically viable commercial applications, but the absence of finalized rules has left companies navigating a cumbersome waiver process. Compounding the challenge are unsettled questions about airspace ownership, the vertical extent of private property rights, and the jurisdictional boundaries between federal, state, local, and tribal authorities.
Historically, airspace regulation evolved from the “ad coelum doctrine,” which held that property ownership extended infinitely upward. This principle posed a barrier to early aviation until Congress enacted the Air Commerce Act of 1926 and the Civil Aeronautics Act of 1938, defining “navigable airspace” as 500 feet or more above ground. The Supreme Court’s decision in United States v. Causby further refined these rights, affirming that property owners could exclude flights interfering with land use within the “immediate reaches” of their property, though without a precise altitude definition.
The mid-20th century brought consolidation of regulatory authority under the FAA through the Federal Aviation Act of 1958, followed by the Airline Deregulation Act of 1978, which preempted states from regulating aspects of aviation related to “price, route, or service.” For drones, this framework places responsibility for altitude, safety, technical standards, and airspace management squarely with the FAA.
Congress began actively addressing drone integration with the FAA Modernization and Reform Act, directing the agency to create a plan for safe incorporation of civil UAS into the national airspace system. The FAA missed its initial deadlines, prompting further initiatives such as the UAS Integration Pilot Program (IPP). The IPP tested collaborative approaches between the FAA, state and local governments, and industry, leading to tools like the Low Altitude Authorization and Notification Capability (LAANC) for real-time airspace data sharing.
Following the IPP, the FAA launched the BEYOND program to tackle BVLOS rules and other unresolved issues. However, a 2022 Office of Inspector General report highlighted shortcomings: undefined data requirements, absent success benchmarks, lack of public reporting standards, and organizational instability. Participants cited “Overly risk-averse tendencies when considering new and innovative concepts of operations which delays innovation,” noting that complex waiver processes and reluctance to accept certain risk mitigations hindered progress.
Despite these issues, the FAA has advanced in areas such as air carrier certification for commercial package delivery and updated safety guidelines for UAS durability. Safety concerns remain paramount, given incidents of drones disrupting airport operations and studies showing frequent violations of altitude limits by private drones.
The BVLOS Aviation Rulemaking Committee submitted its final recommendations in March 2022, offering a framework for risk evaluation and consistent regulation. These proposals could accelerate the FAA’s actions ahead of BEYOND’s planned conclusion in 2024. Congress has also emphasized the role of state, local, and tribal governments in managing aspects of drone commerce, recognizing that operational contexts differ greatly between urban and rural environments.
State and local authorities are well-positioned to regulate takeoff and landing zones, enforce privacy and trespassing laws, and apply time-place-manner restrictions. Drawing from models like telecommunications regulation—where the FCC governs technical standards and licensing while local governments manage infrastructure siting—drone governance could benefit from similarly clear divisions of responsibility.
Effective regulatory collaboration would provide the clarity needed to attract sustained investment and foster innovation. Finalizing BVLOS rules, defining jurisdictional boundaries, and integrating the strengths of federal oversight with local enforcement expertise are essential steps toward unlocking the economic potential of commercial drones.