Arizona municipalities to grapple with local airspace designations, regulations

A quadcopter hovers as Harry Scholz is at the helm of the controls.

Phoenix resident Harry Scholz shows how a sophisticated quadcopter can easily hover from just feet above the ground to thousands in altitude. (Independent Newsmedia/Terrance Thornton)

The debate of how to regulate general airspace above private homes in Arizona municipalities is beginning to gain traction.

As unmanned aircraft armed with video cameras become more accessible and widespread, privacy concerns are ushering in new thoughts on how private property and the airspace directly above it can be regulated and protected.

The airspace above private homes not adjacent to land controlled by an air traffic control tower up to 500 feet is considered Class G Airspace, which has been defined as unregulated airspace or non-navigable. Municipal, private and public airports operate under Federal Aviation Regulations that set certain height limits for actions — typically rates of ascent and descent coupled with vector commands — within defined silos of airspace meant to organize the flow of aircraft traffic.

The maestros of these airways sit in air traffic control towers using radar and flight plans from both private and professional pilots to manage aircraft as they enter through different airspace along their route. But with no maestro keeping an eye to unregulated airspace the level of confusion is rising in Arizona cities and towns when unmanned aircraft hovers below 500 feet.

Officials at the Federal Aviation Administration contend all airspace is now classified navigable airspace but with no flight plans and no way to track activity officials there say education continues to be the best tool to combat misuse of unmanned aircraft.

“We believe the best way of addressing this issue is through education,” said FAA Pacific West Division Public Affairs Manager Ian Gregor in a June 2 written response to e-mailed questions. “If we become aware that someone might be operating a UAS illegally, we will try to contact that person and explain the rules to them.”

The FAA is working on a smart phone application in beta testing now coined “B4UFLY,” which is designed to help model aircraft and unmanned aircraft users know if it is safe and legal to fly in their current or planned location.

Key features of the B4UFLY APP include:

  • A clear “status” indicator that immediately informs operators about their current or planned location;
  • Information on the parameters that drive the status indicator;
  • A “planner mode” for future flights in different locations;
  • Informative, interactive maps with filtering options;
  • Contact information for nearby airports;
  • Links to other FAA UAS resources and regulatory information.

There is no date for when the smart phone application will be made available to the general public, Mr. Gregor says.

“I think several months is the best timeframe we can offer,” he explained. “It depends on what, if any, issues arise during testing.”

Mr. Gregor says the FAA has powers to regulate Class G Airspace.

“We have a number of enforcement tools available to us if someone continues to operate illegally after we contact them, or operates an unmanned aircraft in a manner that endangers manned aircraft or people or property on the ground,” he said. “Those tools include warning notices, letters of correction, and civil penalties.”

The regulation of air

Both the city of Phoenix and Town of Paradise Valley are in the midst of drafting ordinances that apply to unmanned aircraft, at times referred to as “drones.”

Michael Collins

Michael Collins

Paradise Valley Mayor Michael Collins says the effort has evolved into a joint one between the neighboring municipalities of Phoenix and Paradise Valley.

“The unknown nature of landowner airspace rights is what generates confusion and controversy surrounding the use of (Unmanned Aircraft Systems) above private property,” Mayor Collins said in a June 3 written response to e-mailed questions. “The legal question is whether an owner of surface land is entitled to exclude UAS from flying in the airspace directly over the property without permission?”

Mr. Gregor says the FAA has the right to make that determination.
“The FAA has sole jurisdiction over all the navigable civilian airspace in the U.S.,” he explained. “Anyone who operates a UAS anywhere, regardless of the airspace class, has to obey FAA regulations governing their use.”

But the enforcement of that jurisdiction is still very much in question, Mayor Collins points out.

“In most of the United States, airspace above 500 feet is classified as navigable airspace and is managed by the FAA as public property. The Supreme Court affirmed the validity of this designation in the 1946 case United States v. Causby,” Mayor Collins said.  “The same court also found that property owners did hold exclusion rights in at least some of the low-altitude non-navigable airspace directly above their property but refused to determine any specific height.”

Mayor Collins says it is that legal question that needs to be addressed to keep local resident privacy in tact in the 21st Century.

“It is important for our town to be a leader in the protection of private property rights and this question of non-navigable airspace ownership or regulatory authority needs to be addressed,” he said.

“States have long delegated substantial regulatory authority over land use and comparable activities to municipal entities through state zoning enabling acts and similar statutes. That is why I support a local ordinance to prohibit or severely restrict the unauthorized flying of UAS in non-navigable airspace above private property in the Town of Paradise Valley.”

Mayor Collins says the coming ordinance proposal will be a joint effort.

“I look forward to working with the town attorney’s office, the city of Phoenix, and the private industry to craft effective UAS regulation that protects our resident’s reasonable expectation of privacy in their homes and backyards,” he said.

Protecting Paradise Valley

The Paradise Valley drone ordinance, which is in the inception phase, is focused on protecting privacy concerns as more and more citizens worry about the remote-controlled quadcopters flying overhead.

In places like central Phoenix, Paradise Valley and north Scottsdale, photography and video shot by unmanned aircraft are becoming a staple of selling homes in the luxury real estate market, officials say has been going on for quite some time.

Jerry Bien-Willner

Jerry Bien-Willner

“The town is interested in protecting public safety and preserving privacy in considering reasonable regulation of the use of Unmanned Areal Vehicles in the Town of Paradise Valley,” said Paradise Valley Councilman Jerry Bien-Willner in a June 3 written response to e-mailed questions. “At the same time, I believe that the town recognizes there is nothing inherently wrong with these emerging technologies and their legitimate uses.”

Councilman Bien-Willner says he wants to see a well-crafted and researched ordinance that speaks to the values of Paradise Valley — a community he has been elected to represent.

“As with any proposed ordinance, as a member of council I want to be sure the issues are thoroughly researched and vetted, fully and openly discussed among staff, members of council and, most importantly, the public, and that the actions we may take in this area are limited to the specific issue in front of us — in this case, ensuring public safety from low-flying vehicles and attempting to curb any invasion of property or privacy,” he said. “I firmly believe we are on the right track.”

Safety of fellow residents is Councilman Bien-Willner’s primary concern as new views of airspace regulation are being thought, he says.

“UAVs — like any other motorized, moving vehicle — have the potential to injure directly (as was recently reported in the news with Enrique Iglesias having his fingers badly cut) or indirectly, say through a UAV operated on or near a roadway distracting a driver and causing a vehicle or bicycle to crash,” he explained.  “The appropriate regulation of the use and operation of moving vehicles is not only commonplace in our society (e.g., planes, automobiles, and even non-motorized vehicles, such as bikes), it is totally appropriate to protect the public and operators of those vehicles.”

But proposed regulations of local airspace and the uses within those zones have to be reasonable, Councilman Bien-Willner says.

“Town residents also have property rights and legitimate expectations of privacy, and I believe it is appropriate, for example, to put in place reasonable regulation to prohibit third parties from sending low-flying areal vehicles flying onto a resident’s lot without permission,” he said.

“UAVs are sometimes equipped with cameras that can capture both photos and video, so that is an additional privacy concern that we are looking into addressing, as other communities have done. It should be noted that there is not a robust federal or state-wide regulatory framework that addresses these issues at this time.”

Paradise Valley Town Council are expected to see this item as an ordinance proposal this fall.

Northeast Valley Managing Editor Terrance Thornton can be contacted at tthornton@newszap.com

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